University  of  California  •  Berkeley 


IE  THE  ATTORNEY  GENERAL. 

NDEMNITY   LANDS 

OP 

them  Pacific  Railroad  Co. 

ARGUMENT 

OF 

JAMES  MC^AUGHT, 

Counsel  N.  P.  R.  R.  Co. 


flONEER  PRESS,  ST.  PAUL-  MINN. 


EDWARD  W,  NOLAN 


EDWARD  W.  NOLAN 


INDEMNITY  LAXDS. 

NORTHERN  PACIFIC  R.  R.  CO. 


To  Attorney  General  (rnrf<(n<l  <iml  Snlidh 

The  honorable  secretary  of  the  interior  lias  sub- 
mitted for  your  consideration  ami  opinion,  two  prop- 
ositions. 

First,  as  to  whether  the  joint  resolution  of  May  81, 
1870,  created  a  second  indemnity  limit. 

Second,  as  to  whether  selections  can  be  made  in  the 
first  indemnity  limits  in  a  state  or  territory  other  than 
that  in  which  the  loss  occurred. 

I. 

In  addition  to  the  arguments  made  by  \V.  K.  Meu- 
denhall  and  the  undersigned  before  the  secretary  of 
the  interior  (which  arguments  have  been  by  the  secre- 
tary, with  other  papers,  submitted  to  you),  we  desire 
to  cite  four  additional  authorities  upon  the  first  propo- 
sition : 

First.  In  the  case  of  the  Northern  Pacific  Railroad 
Company  vs.  tlie  St.  Paul  &  Pacific  Railroad  Company  et 
«L,  defendant,  and  the  St.  Paul,  Minneapolis  &  Manitoba 
Railway  Company,  plaintiff,  >•*.  Northern  Pacific  Rail- 


road  Company,  defendant,  Messrs.  Biglow,  Young, 
Pinney  and  Galusha,  in  their  printed  arguments  filed 

in  the  circuit  court,  district  of  Minnesota,  said:  "If 
any  part  of  the  deficiency  within  the  twenty  mile  limits 
results  from  grants,  or  reservations  made  by  Congress, 
or  pre-emptions,  etc.,  after  July  2,  1864,  and  the 
deficiency  thus  resulting  can  not  be  supplied  within 
the  thirty  mile  limits,  then  and  in  that  case  only,  the 
company  may  go  ten  miles  further  and  select  lands  to 
supply  it.  The  company  can  claim  no  lands  outside  of 
the  thirty  mile  limits  except  for  deficiencies  thus  result- 
ing from  dispositions  made  by  grants,  reservations,  or 
otherwise,  of  lands  within  the  thirty  mile  limits  subse- 
quent to  July  2,  1864."  The  proposition  that  the  said 

joint  resolution  created  a  second  indemnity  belt,  is  so 
plain  that  the  said  able  counsel  for  the  St.  Paul,  Min- 
neapolis &  Manitoba  Railway  Company  were  com- 
pelled to  concede  it.  Judge  Brewer,  in  finally  decid- 
ing the  said  case  in  favor  of  the  Northern  Pacific  Rail- 
road Company,  assumed  without  question  tha  the  said 
joint  resolution  created  a  second  indemnity  belt.  The 
St.  Paul,  Minneapolis  &  Manitoba  Railway  Company 
appealed  from  said  judgment,  but  in  said  appeal  the 
said  company  did  not  assign  that  portion  of  the  judg- 
ment as  error.  In  November,  1887,  the  appellant  in 
said  case  filed  in  the  supreme  court  of  the  United 
States  a  printed  argument  and  motion  to  advance  said 
case  upon  the  docket,  and  on  page  four  thereof  said 
u  that  said  joint  resolution  of  May  3 1,1 8  70,  gran  ted  addi- 
tional indemnity  limit  to  the  Northern  Pacific  Railroad 
Comparnv'  When  a  proposition  is  so  plain  that  counsel 
so  able  concede  its  correctness  adversely  to  the  inter- 
ests of  their  clients,  but  little  is  left  for  the  courts  or 
departments  to  do  or  say  upon  the  subject. 

Second.     The  honorable  secretary  of  the  interior,  in 


his  decision  of  Aug.  15,  1887,  obiter  dicta,  said  that  the 
word  "  grant "  included  place  lands  only.  Judge  Love, 
Circuit  Judge  McCrary  concurring,  in  the  case  of  Chi- 
cago, Milwaukee  &  St.  Paul  Railway  Company  vs. 
Sioux  City  &  St.  Paul  Railroad  Company,  said: 

"Lands  in  place  and  the  indemnity  lands  were  granted 
by  Congress  for  precisely  the  same  purpose." 

3  McCrary,  p.  300. 

Third.     In  your  opinion  of  Nov.  17,  1887,  constru- 
ing the  act  of  Congress  of  March  3,  1887,  you  correct- 
ly decided  that  the  word  "  grant "  included  indemnity 
as  well  as  place  lands. 
6  L.  D.  p.  272. 

Fourth.  During  the  first  session  of  the  forty-eighth 
Congress  Mr.  Henley,  for  the  committee  on  public 
lands,  reporting  m  favor  of  forfeiting  the  grants  to  the 
Northern  Pacific  Railroad  Company,  said: 

"The  grant  being  for  20  miles  along  the  entire  line  in 
all  the  states  and  40  miles  in  all  the  territories  through 
which  the  line  might  be  located,  with  the  right  of  indem- 
nity selection  within  ten  additional  miles,  afterwards, 
by  subsequent  act  (16  Stat.  278),  enlarged  to  20  miles, 
for  all  lands  lost  in  the  grant  in  place." 

House   Report   No.   1256,  1st  session  forty-eighth 
Congress. 

During  the  first  session  of  the  forty-ninth  Congress 
the  committee  on  public  lands  made  a  similar  report, 
and  in  said  report  said  that  the  said  joint  resolution  of 
May  31,  1870,  created  a  second  indemnity  belt. 

House  Report  No.  1226,  dated  March  22,  1886. 

II. 

We  will  discuss  the  second  proposition  presented  to 


you  by  the  honorable   see-rotary  of  the  interior  under 
two  1  it-ads. 

First.  Is  the  company  limited  by  the  twenty-five 
mile  section  mentioned  in  the  fourth  section  of  the 
act  of  July  2,  1864,  in  the  selection  of  indemnity 
lands? 

Second.     Can  selections  be  made  in  a  state  or  terri- 
tory other  than  that  in  which  the  loss  occurred? 
Said  section  four  reads  as  follows: 

u  SEC.  4.  Anil  be  H  farther  enacfal,  That  whenever 
said  Northern  Pacific  Railroad  Company  shall  have 
twenty-five  consecutive  miles  of  any  portion  of  said 
railroad  and  telegraph  line  ready  for  the  service  con- 
templated, the  president  of  the  United  States  shall  ap- 
point three  commissioners  to  examine  the  same,  and  if 
it  shall  appear  that  twenty-five  consecutive  miles  of 
said  road  and  telegraph  line  have  been  completed  in  a 
good,  substantial  and  workmanlike  manner,  as  in  all 
other  respects  required  by  this  act,  the  commissioners 
shall  so  report  to  the  president  of  the  United  States 
and  patents  of  lands,  as  aforesaid,  shall  be  issued  to 
said  company,  confirming  to  said  company  the  right 
and  title  to  said  lands,  situated  opposite  to,  and  coter- 
minus  with,  said  completed  section  of  said  road;  and 
from  time  to  time,  whenever  twenty -five  additional 
consecutive  miles  shall  have  been  constructed,  com- 
pleted and  in  readiness  as  aforesaid,  and  verified  by 
said  commissioners  to  the  president  of  the  United 
States,  then  patents  shall  be  issued  to  said  company 
conveying  the  additional  sections  of  land  as  aforesaid, 
and  so  on  as  fast  as  every  twenty-five  miles  of  said  road 
is  completed  as  aforesaid.  *." 

Said  section  has  no  bearing  or  influence  upon  the 
questions  submitted  for  your  consideration  and  opin- 
ion, for  the  reason  following: 

Said  section  applies  to  place  lands  and  not  to  indem- 
nity lands. 

As  to  the  indemnity  lands,  three  steps  must  be  taken 


in  addition  to  the  requirements  of  section  four  prior  to 
the  vesting  in  the  company  of  the  right  to  patents: 
First,  it  must  be  ascertained  that  there  is  a  deficiency 
in  place  lands;  second,  the  secretary  of  the  interior 
must  have  prescribed  directions  under  which  selections 
of  indemnity  lands  are  to  be  made  by  the  company; 
third,  the  company,  under  said  directions,  must  have 
made  and  filed  its  list  of  selections.  The  right  to  the 
patents  does  not  vest  until  the  additional  steps  above 
enumerated  have  been  taken,  and  perhaps  not  until 
the  selections  have  been  approved  by  the  secretary  of 
the  interior. 

Grinnell  vs.  Railroad  Co.,  103  U.  S.  742. 

Ryan  vs.  C.  P.  R.  R.  Co.,  99  U.  S.  382. 

Kansas  Pacific  R.  R.   Co.  vs.  Atchison,  etc.,  R.  R. 
Co.,  112  U.  S.  414. 

St.  Paulj-  S.  C.  R.  R.  Go.   vs.  W.  £  St.  P..R.  R. 
Co.,  112  U.  S.  720. 

Kan.w  ( *>'('/,  dc.,  R.  R.  (b.  vs.  Attorney  General, 
118  U.  S.  682. 

Cedar  Rapids,  etc.,  R.  R.  Co.  vs.  Herring  et  al.,  110 
U.  S.  27. 

S.  C.  £  S.  P.  R.  R.  Co.  M.  ( .,M.$  S.  P.  Ry.  Co., 

117  U.  S.  406. 

As  to  the  lands  referred  to  in  said  section  four,  the 
title  vests  on  the  filing  of  the  map  of  definite  location 
and  the  right  to  the  patents  is  perfected  on  the  com- 
pletion of  the  road  as  therein  stated. 

Buttz  vs.  N.  P.  R.  R.  Co.,  119  U.  S.  55. 

N.  P.  R.  R.  Co.  vs.  Majors,  2  Pac.  Rep.  322. 

Lilly  vs.  N.  P.  R.  R.  Co.,  9  Pac.  Rep.  116. 


Denny,  grantee  of  N.  P.  E.  R.  Co.  vs.  Dodson.    Cir- 
cuit court  for  district  of  Oregon;  opinion  by 
Field,  associate  justice,  rendered  Nov.  28,  1887. 
Deady,  district  judge,  concurring. 
This  is  apparent  not  only  from  the  entire  section, 
but  especially  from  the  use^  of  the  words  u  confirming 
to  said  company  the  right  and  title  to  said  lands,  situ- 
ated opposite  to,  and  coterminous  with,  said  completed 
section  of  said  road." 

"  A  confirmation  is  a  species  of  common  law  convey- 
ance. It  is  defined  as  a  deed,  whereby  a  conditional 
or  voidable  estate  is  made  absolute  and  unavoidable  by 
the  confirmer,  so  far  as  he  is  able,  or  whereby  a  par- 
ticular estate  is  increased." 

N.  P.   E.  E.  Co.  vs.  Majors,  2  Pac.  Rep.  333. 

2  Blackstone   Comm.   325;  Coke,  Lit.  295  b. 

1  Abbott's  Law  Dictionary,  263. 
There  would  be  no  doubt  as  to  the  correctness  of 
this  proposition  were  it  not  for  the  word  u  conveying" 
used  in  the  latter  part  of  said  section.  Conveyance  is 
a  generic  word  of  which  confirmation  is  the  species. 
Its  operative  words  includes  those  of  feoffment,  which 
is  also  a  species  of  conveyance. 

The  supreme  court  of  Montana  territory  correctly 
say: 

"  We  think,  therefore,  when  the  word  *  conveying' 
was  used  in  the  latter  portion  of  section  4,  it  was  em- 
ployed as  synonymous  with  the  language  used  in  the 
first  portion  thereof,  viz.:  i  confirming  the  right  and 
title." 

Northern   Pdcific   E.    E.    Co.  vs. '-Majors,  2  Pacific 
Rep.  322,  333. 

The  solicitor  general,  Mr.  Jenks,  when  assistant  sec- 


retary    of  the    interior,  Aug.    13,  1885,  correctly  said 
of  section  four: 

"  From  these  provisions,  as  the  railroad  company 
completed  each  consecutive  twenty-five  miles  of  road, 
upon  the  report  of  the  commissioners,  the  grant  must 
be  confirmed  by  patents  for  the  land  on  each  side  of  the 
road  corresponding  with  the  section  of  the  road  com- 
pleted." 

5  L.  D.  459. 

Said  decision  by  the  assistant  secretary  is  correct  in 
every  particular.  It  must  be  remembered,  however, 
that  it  applies  to  the  terminal  limits  of  intermediate 
sections  of  the  road,  and  not  to  the  termini  of  the 
whole  road.  The  honorable  secretary  of  the  interior, 
Oct.  7,  1887,  in  adjusting  the  grant  of  the  Chicago,  St. 
Paul,  Minneapolis  &  Omaha  railroad,  said  to  Commis- 
sioner Sparks: 

"I  think  you  have  misapprehended  both  of  these  de- 
cisions, if  they  have  led  you  to  the  adoption  of  the 
terminal  line  of  your  map.  In  the  case  of  the  North- 
ern Pacific,  the  acting  commissioner  had  directed  that 
the  general  course  of  the  whole  length  of  the  line  of 
the  road  from  Spokane  Falls  to  Wallula  Junction  —  a 
distance  of  one  hundred  and  ninety  miles  —  should 
be  adopted  and  a  line  drawn  at  right  angles  therewith 
for  the  terminal  line  at  that  point.  The  decision  held 
this  to  be  error,  and  approved  of  the  revocation  of  the 
action  of  the  acting  commissioner,  and  the  opinion  was 
expressed  that  the  general  course  of  the  last  twenty- 
five  miles  should  have  been  taken  and  a  line  drawn  at 
right  angles  thereto. 

"  It  should  be  observed,  however,  that  here  the  depart- 
ment was  not  passing  upon  the  adjustment  of  '  terminal ' 
lines  in  the  sense  that  they  are  applicable  to  the  end  or 
extremity  of  the  road.  Wallula  Junction  was  not  the 
end  of  the  Northern  Pacific  road;  it  was  a  point  to 
which  the  road  had  been  constructed  on  the  way  to 
Puget  sound,  the  terminus  or  extreme  end  to  which  its 
charter  authorized  it  to  go.  And  this  department  held 


8 

in  adjusting  the  terminal  line  at  the  point  to  which  the 
road  was  constructed,  the  rule  of  adjustment,  for  the 
purpose  of  issuing  patents,  during  the  construction  of 
the  road,  prescribed  by  the  fourth  section  of  the  grant- 
ing act,  should  be  followed,  and  the  terminal  lines  at 
the  end  of  construction  'should  be  run  at  right  angles 
to  the  general  course  of  the  last  twenty-five  miles  of 
the  road.'  This  was  exactly  in  harmony  with  the  pro- 
visions of  the  statute. 

"In  the  Scott  case,  the  principles  upon  which  rail- 
road grants  should  be  adjusted  were  most  carefully 
considered.  And  though  the  question  on  which  that 
case  came  before  the  department  related  more  particu- 
larly to  the  lateral  limits  of  the  road,  the  principles 
therein  declared  are  such  that  they  should  settle  all 
questions  as  to  the  adjustment  of  both  lateral  and  ter- 
minal limits  in  the  sense  that  the  last  expression  is  ap- 
plicable to  the  end  of  a  road.  It  makes  the  actual  road, 
as  located  and  made,  the  object  and  measure  of  the 
grant  and  the  base  of  its  locality;  and  says  that  none 
other  must  be  adopted.  With  the  road  thus  clearly 
fixed,  lines  drawn  l  perpendicular  to  it  at  each  end/  as 
was  said  in  United  States  vs.  Burlington  Railroad 
Company,  98  U.  S.  340,  will  determine  the  final  limits 
without  mistake  or  difficulty." 

Mr.  Justice  Field,  Judge  Deady  concurring,  in  the 
case  of  Denny  vs.  Dodson,  Nov.  29,  1887,  said : 

"  '  The  grant  to  the  Northern  Pacific  Railroad  Com- 
pany is  a  float  until  the  filing  of  its  map  of  definite 
location.  *  *  *  Then  the  grant 

attaches  to  the  lands  in  place.  It  is-  in  this  sense  that 
the  grant  is  termed  a  grant  in  prcesenti.  * 

The  present  title  here  mentioned  is  a  legal  title  as 
distinguished  from  an  equitable  or  inchoate  interest 
arising  upon  a  contract  or  promise  of  the  government. 
*  The  defendant  contends  that 

the  natural  import  of  the  granting  terms  is  qualified 
and  restricted  by  the  fourth  section  of  the  act,  which 
provides  that  whenever  twenty-five  miles  of  the  road 
are  completed  in  a  good,  substantial  and  workmanlike 
manner,  and  commissioners  appointed  to  examine  the 
same  have  made  a  report  to  that  effect  to  the  president, 
patents  shall  be  issued  '  confirming  to  the  company  the 


right  and  title  to  said  lands  situated  opposite  to  and 
coterminus  with  the  said  completed  section  of  the 
road.'  Why,  it  is  asked,  is  there  a  necessity  of  such 
patents,  if  the  title  is  passed  by  the  act  itself?  There 
are  many  reasons  why  patents  should  be  issued  on 
completion  of  portions  of  the  road.  They  would 
identify  the  lands  which  are  coterminus  with  the  road 
completed;  they  would  be  evidence  that  the  grantee, 
in  the  construction  of  that  portion  of  the  road  had 
fully  complied  with  the  conditions  of  the  grant,  and 
to  that  extent  the  grant  was  relieved  of  possibility  of 
forfeiture  for  breach  of  its  conditions;  and  they  would 
obviate  the  necessity  of  any  other  evidence  of  the 
grantee's  title  to  the  lands  embraced  in  them.  They 
would  thus  be  deeds  of  further  assurance  confirmatory 
of  the  grantee's  title,  and  so  be  invaluable  to  them  as 
a  source  of  quiet  and  peace  in  their  possessions.  The 
word  'confirming '  is  applied  to  such  patents  in  section 
four." 

The  line  of  argument  used  by  Justice  Field  and  the 
entire  decision  is  applicable  and  applies  to  place  lands, 
and  not  to  indemnity  lands. 

Congress,  March  3,  1856,  in  an  act  entitled  "  An  act 
making  a  grant  of  land  to  the  territory  of  Minnesota, 
etc.,"  among  other  things  provided: 

"SECTION  1.     Be  it  enacted,  etc.,  That  there  be  and  is 
hereby  granted  to  the  territory  of  Minnesota,  for  the 
purpose  of  aiding  in  the  construction  of  railroads     * 
*     from  Winona,  via  St.  Peters,  to  a  point  on  the 
Big  Sioux  river  *        every  alternate  section  of 

land,  designated  by  odd  numbers,  for  six  sections  in 
width  on  each  side  of  said  road ;  but  in  case  it  shall 
appear  that  the  United  States  have,  when  the  lines  or 
routes  of  said  road  are  definitely  fixed,  sold  any  sec- 
tions, or  any  parts  thereof,  granted  as  aforesaid,  or  that 
the  right  of  pre-emption  has  attached  to  the  same,  then 
it  shall  be  lawful  for  any  agent  or  agents,  to  be  ap- 
pointed by  the  governor  of  said  territory  or  future  state, 
to  select,  subject  to  the  approval  of  the  secretary  of  the 
interior,  from  the  lands  of  the  United  States  nearest  to 
the  tiers  of  sections  above  specified,  so  much  land,  in 
alternate  sections,  or  parts  of  sections,  as  shall  be  equal 

2 


10 

to  such  lands  as  the  United  States  have  sold,  or  other- 
wise appropriated,  or  to  which  the  rights  of  pre-emp- 
tion have  attached,  as  aforesaid;  * 
Provided,  that  the  land  to  be  so  located  shall,  in  no 
case,  be  further  than  fifteen  miles  from  the  line  of  said 
road  or  branches. 

SEC.  4.         *  *  *       That  the  lands 

hereby  granted  shall  be 

disposed  of  only  in  the 

manner  following :  *       That 

a  quantity  of  land  not  exceeding  120  sections  for  each  of 
said  roads  and  branches,  and  included  within  a  continu- 
ous length  of  20  miles  of  each  of  said  roads  and  branches, 
may  be  sold;  and  when  the  governor  of  said  territory 
or  future  state  shall  certify  to  the  secretary  of  the  in- 
terior that  any  20  continuous  miles  of  any  of  said  roads 
or  branches  is  completed,  then  another  quantity  of  land 
hereby  granted,  not  to  exceed  120  sections  for  each  of 
said  roads  and  branches  having  20  continuous  miles 
completed  as  aforesaid,  and  included  within  a  continu- 
ous length  of  20  miles  of  each  of  such  roads  or  branches, 
may  be  sold;  *  * 

11  U.  S.  Stat.  195. 

March  3,  1865,  Congress,  in  another  act  relating  to 
said  railroads,  among  other  things,  provided:  First, 
that  the  grant  should  be  increased  to  ten  sections  per 
mile;  second,  enlarged  the  indemnity  limits  to  twenty 
miles,  and  provided  that  the  lands  granted  should  be 
indicated  by  the  secretary  of  the  interior. 

And  by  the  sixth  section  provided,  as  follows : 

"  SEC.  6.  And  be  it  further  enacted,  That  the  lands 
hereby  and  heretofore  granted  "* 

shall  be  disposed  of  by  said  state  for  the  purposes  afore- 
said only,  and  in  manner  following,  namely :  When 
the  governor  of  said  state  shall  certify  to  the  secretary 
of  the  interior  that  any  section  of  10  consecutive  miles 
of  said  road  is  completed  in  a  good,  substantial  and 
workmanlike  manner,  as  a  first  class  railroad,  * 

*  the  said  secretary  of  the  interior  shall 
issue  to  the  said  state  patents  for  all  the  lands  granted 
and  selected  as  aforesaid,  not  exceeding  10  sections  per 


11 

mile,  situated  opposite  to  and  within  a  limit  of  20 
miles  of  the  line  of  said  section  of  road  thus  completed, 
extending  along  the  whole  length  of  said  completed 
section  of  10  miles  of  road,  and  no  further.  And 
when  the  governor  of  said  state  shall  certify  to  the  sec- 
retary of  the  interior,  and  the  secretary  shall  be  satis- 
lied  that  another  section  of  said  road,  10  consecutive 
miles  in  extent,  connecting  with  the  preceding  section 
or  with  some  other  first  class  railroad, 

is  completed  as  aforesaid,  the  said  secretary 
of  the  interior  shall  issue  to  the  said  state  patents  for 
all  the  lands  granted  and  situated  opposite  to  and 
within  the  limit  of  20  miles  of  the  line  of  said  completed 
section  of  road  or  roads,  and  extending  the  length  of  said 
section,  and  no  further,  not  exceeding  10  sections  of  land 
per  mile  for  all  that  part  of  said  road  thus  completed 
under  the  provisions  of  this  act  and  the  act  to  which 
this  is  an  amendment,  and  so,  from  time  to  time,  until 
said  roads  and  branches  are  completed." 

13  IT.  S.  Stat.  p.  526. 

July  13,  1866,  Congress  enacted: 

"SEC.  4.  And  be  it  further  enacted,  That  the  lands 
granted  by  any  act  of  Congress  to  the  state  of  Minne- 
sota, to  aid  in  the  construction  of  railroads  in  said  state, 
specifically,  lying  in  place,  on  any  division  often  miles 
of  road,  shall  not  be  disposed  of  until  the  road  shall  be 
completed  through  and  coterminous  with  the  same; 
Provided,  kowener,Tbat  this  provision  shall  not  extend  to 
any  lands  authorized  to  be  taken  to  make  up  deficien- 
cies." 

14  U.  S.  Stilt,  p.  97. 

In  the  case  of  Barney  ct  nl.  /•*.  Winona  &  St.  Peter 
ii.  R.  Co.,  a  railroad  company  claiming  a  land  grant 
under  the  foregoing  lawrs,  Mr.  Justice  Miller,  deliver- 
ing the  opinion  of  the  court,  said: 

"I  am  of  the  opinion  that,  in  the  selection  of  these 
indemnity  lands,  there  is  no  restriction  to  coterminous 
section  of  twenty  miles  in  length  of  the  road  except  as 
that  may  have  been  affected  by  the  short  period  be- 
tween the  passage  of  the  act  of  March  3,  1865,  which 
did  appropriate  the  lands  in  place  to  the  construction 


12 

of  coterminous  road,  and  the  passage  of  the  act  of  July 
13, 1866,  which  exempted  from  that  rule  lands  selected 
in  lieu  of  those  deficient  anywhere." 

»i  Fed.  Rep.  802. 

.June  8,  1856,  an  act  was  passed  granting1  lands  to  the 
state  of  Wisconsin  to  aid  in  the  construction  of  rail- 
roads in  that  state.  The  first  section  of  this  act  is  sub- 
stantially the  same  as  the  first  section  of  the  act  of 
March  3,  1857,  granting  lands  to  the  state  of  Minne- 
sota, heretofore  cj noted.  Section  4  of  this  act  is  as 
follows: 

"SEC.  4.  And  in'  it  further  enacted,  That  the  lands 
hereby  granted  to  said  state  shall  be  disposed  of  by 
said  state  only  in  the  manner  following,  that  is  to  say: 
That  a  quantity  of  land  not  exceeding  120  sections,  and 
included  within  a  continuous  length  of  20  miles  of 
roads,  respectively,  may  be  sold ;  and  when  the  gover- 
nor of  said  state  shall  certify  to  the  secretary  of  the  in- 
terior that  any  20  continuous  miles  of  either  of  said 
roads  are  completed,  then  another  like  quantity  of  land 
hereby  granted  may  be  sold;  and  so  from  time  to  time 
until  said  roads  are  completed." 

U.  S.  Stat.  p.  20. 

By  act  of  May  5,  1864,  the  grant  was  increased  for 
certain  of  said  roads  to  ''every  alternate  section  of  pub- 
lic land  designated  by  odd  numbers  for  ten  sections  in 
width  on  each  side  of  said  road; "  and  indemnity  al- 
lowed for  losses  in  said  grant;  "provided,  that  the  lands 
to  be  so  located  shall  in  no  case  be  further  than  twenty 
miles  from  the  line  of  said  roads."  Section  7  of  said 
act  reads  as  follows: 

"SEC.  7.  And  be  it  further  enacted,  That  whenever  the 
companies  to  which  this  grant  is  made,  or  to  which  the 
same  may  be  transferred,  shall  have  completed  twenty 
consecutive  miles  of  any  portion  of  said  railroads, 

patents    shall    issue    conveying 
the  ri o-l it  and  title  to  said  lands  to  the  said  company  en- 


13 

titled  thereto,  on  each  side  of  the  road,  so  far  as  the 
same  is  completed,  and  coterminous  with  said  com- 
pleted section,  not  exceeding  the  amount  aforesaid,  and 
patents  shall  in  like  manner  issue  as  each  twenty  miles 
of  said  road  is  completed ;  Provided,  however,  That  no 
patents  shall  issue  for  any  of  said  lands  unless  there 
shall  be  presented  to  the  secretary  of  the  interior  a 
statement  that  such  twenty  miles 

have  been  completed  in  the  manner  required  by  this 
act,  and  setting  forth  with  certainty  the  points  where 

such  twenty  miles  begin  and  where  the  same  end.       * 

*         *         *         ^» 

13  U.  S.  Stat.  p.  66. 

Judge  Drummond,  in  the  case  of  the  Madison  & 
Portage  R.  R.  Co.  ?v?.  The  Treasurer  of  the  State  of 
Wisconsin  el  aL,  pending  before  the  United  States  cir- 
cuit court,  western  district  of  Wisconsin,  on  the  nine- 
teenth day  of  June,  1877,  said: 

"  One  of  the  most  important  questions  that  arises  is 
as  to  the  true  construction  of  this  section  (section  4 
of  the  act  of  1856),  how  the  land  was  to  be  selected. 

"It  is  claimed  on  the  one  hand  that, although  120  sec- 
tions might  be  sold  before  any  portion  of  the  road  was 
completed  (R.  R.  Land  Co.  vs.  Courtwright,  21  Wall. 
310),  when  20  miles  were  completed  the  conditions  an- 
nexed to  the  first  sale  followed  that,  and  the  comple- 
tion of  every  other  20  miles,  and  that  the  land  was  to 
be  selected  by  coterminous  boundaries. 

"It  might  be,  after  the  completion  of  the  first  20 
miles,  the  grant  operated  upon  120  sections,  provided 
that  number  was  included  in  that  tier  of  sections  near- 
est to  the  completed  road;  but  did  that  limit  the  grant 
if  that  number  could  not  be  found  there?  I  do  not 
think  it  did. 

"  I  understand  that  the  meaning  is  that  the  first  120 
sections  were  to  be  taken  if  so  many  could  be  found 
then  continuously  upon  20  miles  of  the  road,  but  that 
the  grant  afterwards,  when  20  miles  were  built  from 
time  to  time,  did  not  operate  as  it  did  upon  the  selec- 
tion of  the  first  120  sections.  Is  this  the  true  con- 
struction of  the  section?  It  seems  to  me  that  it  is,  and 
that  the  contemporaneous  legislation  shows  that  it  is. 


x     14 

*  f  If  this  is  the  true  meaning  of  the  grant 
made  by  Congress,  then  the  state  is  not  limited  in  the 
grant  by  coterminous  boundaries  in  the  construction 
of  the  road,  but  had  the  right,  whenever  the  road  was 
in  process  of  construction,  and  from  time  to  time  20 
miles  were  completed,  to  make   the   selection   of  the 
land  within  the  boundaries  granted,  either  '  in  place,' 
or  within  the  'indemnity  limits.'  *         * 

"It  is  said  that  the  land  department  of  the  govern- 
ment has  construed  this  to  be  distinct  grants  for  three 
several  roads,  namely,  for  a  road  from  Madison  to  the 
St.  Croix  river,  and  another  from  St.  Croix  river  or 
lake  to  the  west  end  of  Lake  Superior  and  to  Bayfield; 
and  that  the  purpose  was  to  limit  the  terms  of  the 
grant  for  each  road  to  these  several  termini,  so  that  no 
land  could  be  taken  from  the  one  to  supply  any  de- 
ficiency in  the  other. 

"I  hardly  think  that  is  the  true  construction  of  the 
statute.  It  seems  to  me  that  it  was  intended  to  be  one 
line  of  road,  and  that  the  grant  of  land  was  made  for 
the  purpose  of  enabling  the  state  to  construct  that  line, 
and  that  where  there  is  a  deficienc}-  in  one  part  it 
might  be  supplied  from  another. 

"Another  consideration,  perhaps,  adds  weight  to  this 
view  of  the  case.  I  suppose  it  to  be  a  fact  that,  at  the 
time  this  grant  was  made,  a  large  portion  of  the  land 
between  Madison  and  Portage  City,  and  so  on  to  To- 
mah,  had  actually  been  granted  by  the  government; 
that  is  to  say,  it  had  been  purchased  and  entered  by 
settlers;  and  it  must  have  been  foreseen,  therefore, 
that,  as  to  the  southern  portion  of  the  road,  it  was, 
like  the  rest,  to  be  constructed,  in  part  at  least,  by  the 
means  Congress  furnished.  That  not  much  land,  or 
not  the  full  quantity  intended  to  be  granted,  could  be 
obtained  even  within  the  'indemnity  limits'  of  the 
southern  portion  of  the  line  of  the  road,  and  which 
must  be  presumed  to  have  been  known  to  Congress. 

*  *         * 

"  We  now  come  to  the  act  of  1864.  *  *          * 

Another  important  question  arises  under  the  act  of  1864; 
that  is,  how  the  land  was  to  be  disposed  of. 

*  I  understand  it  is  claimed  by  some  of  the  coun- 
sel of  the  defendants,  that  the  true  construction   of 
both  grants  is  that  the  lands  in  place  and  selected  must 


15 

be  coterminous  with  each  consecutive  20  miles  fin- 
ished ;  and  if,  in  the  one  instance,  there  are  not  120 
sections,  and  in  the  other  200  sections,  covered  by  the 
grant  and  coterminous  with  the  20  miles  of  road,  no 
land  can  be  taken  elsewhere  from  'place'  or  *  indem- 
nity limits'  to  supply  the  deficiency. 

"  I  hardly  think  that  was  the  intention  of  Congress, 
and  certainly  not,  as  was  intimated  before,  of  the  act 
of  1856.  It  seems  to  me  that  the  object  was  to  make 
the  grant  so  that  the  parties  who  were  to  construct  the 
various  roads  should  be  furnished  with  the  means,  so 
far  as  the  grant  could  effect  that  object,  to  finish  the 
roads.  *  ." 

JR.  R.  Land  Co.  vs.  (  o",-t>r right,  21  Wall.  310. 
See  also: 

dar  Rapids  and  M.  R.  E.  Co.  vs.  Jewell,  12  Am. 
and  En.  R.  E.  Cases,  277. 
Cedar  Rapids  #  M.  R.  R.  Co.  vs.  Herring  et  al.,  110 

U.  S.  27. 
Sioami  $  Billups  vs.  Lindsey,  14  Am.  and  En.  R. 

R.  Cases,  504. 
Swann  £  Billups  vs.  Larmore,  14  Am.  and  En.  R. 

R.  Cases,  519. 

U.  S.  vs.  B.  $  M.  R.  E.  Co.,  98  U.  S.  334. 
U.  S.  vs.  B  $M.  R.  R.  Co.,  4  Dillon,  297. 
Second.    Said  section  four  is  not  mandatory.    Under 
it,  it  is  optional  with  the  company  to  apply  for  patents 
as  each  section  is  completed,  or  wait  until  the  comple- 
tion of  other  sections  or  of  the  entire  road. 

Said  section  is  directory.  For  fourteen  years  it  has 
been  so  construed  by  the  presidents  of  the  United  States 
and  the  secretaries  of  the  interior.  Jan.  6,  1873,  com- 
missioners were  appointed  to  examine  a  section  of  the 
Northern  Pacific  Railroad  Company's  road  from  the 
junction  with  the  Lake  Superior  &  Mississippi  rail- 
road to  Red  river,  a  distance  of  228  miles.  The 


16 

commissioners  reported  its  completion.  The  then 
acting  secretary,  Mr.  Cowen,  recommended  the  ac- 
ceptance of  said  section  and  the  issuance  of  patents, 
and  on  the  same  day  President  Grant  approved  the 
said  report  and  recommendations.  Aug.  16,  1873, 
commissioners,  duly  appointed,  reported  the  con- 
struction in  a  first  class  manner,  of  a  section  of  the 
railroad  from  Kalama  in  Washington  territory,  thence 
northerly  65  miles.  Sept,  8,  1873,  the  secretary 
recommended  the  acceptance  of  said  section  of  65 
miles  and  the  issuing  of  patents,  and  Sept.  10,  1873, 
President  Grant  accepted  the  said  section  of  the  road, 
and  approved  the  recommendations  of  the  secretary. 
March  5,  1874,  commissioners,  duly  appointed,  re- 
ported the  completion,  in  all  respects  as  required  by 
the  charter,  of  a  section  of  road  40.1  miles  in  length, 
commencing  in  Thurston  county,  Washington  terri- 
tory, and  ending  at  Tacoma.  May  12,  1874,  the  sec- 
retary recommended  the  acceptance  of  the  report  arid 
the  issuance  of  patents  for  the  lands  along  said  section ; 
and  on  the  same  day  the  president  accepted  said  section 
of  road  and  approved  the  recommendations  of  the  sec- 
retary. Nov.  29,  1882,  commissioners,  duly  appointed 
for  that  purpose,  reported  the  completion  in  compli- 
ance with  the  law,  of  a  section  of  the  road  consisting 
of  4.58  miles.  Dec.  5,  1882,  Secretary  Teller  recom- 
mended the  acceptance  of  said  section  of  road,  and  the 
issuance  of  patents;  and  on  the  same  day  President 
Arthur  accepted  said  section  and  approved  the  recom- 
mendations of  the  secretary.  Oct  1,  1883,  commission- 
ers, duly  appointed,  reported  the  completion  of  a  sec- 
tion of  road  from  Kalama  to  Portland,  a  distance  of 


17 

36.31  miles.  Oct.  4,  1883,  the  secretary  recommended 
the  president  to  accept  the  same,  and  on  said  day  the 
president  of  the  United  States  accepted  the  said  sec- 
tion of  the  road  and  approved  the  recommendations  of 
the  secretary.  Dec.  8,  1884,  commissioners,  duly 
appointed,  reported  upon  two  sections  of  road,  one  2 
miles  and  the  other  35  miles,  all  in  Washington  terri- 
tory. On  Dec.  19,  1884,  Acting  Secretary  Joslyn  re- 
ceived the  report  of  the  commissioners,  forwarded  the 
same  to  the  president  of  the  United  States,  with  the 
recommendation  that  the  said  sections  of  the  road  he 
accepted,  and  on  said  day  President  Arthur  approved 
said  recommendations.  Feb.  6,  1885,  commissioners, 
duly  appointed  to  accept  the  section  of  the  road  37.5 
miles  in  length,  from  Ashland,  in  Wisconsin,  west- 
wardly,  reported  the  same  as  duly  completed;  and  on 
the  same  day  Secretary  Teller  recommended  the  ac- 
ceptance of  said  section  of  road,  and  the  president  of 
the  United  States  approved  said  recommendations. 
May  24,  1886,  commissioners,  regularly  appointed,  re- 
ported the  completion,  in  compliance  with  the  char- 
ter, of  40  miles  of  the  road  in  the  Yakirna  valley  in 
Washington  territory,  and  on  the  same  day  Secretary 
Lamar  transmitted  the  report  to  the  president  of  the 
United  States,  with  the  recommendation  that  the  »aid 
section  of  road  be  accepted;  and  on  May  28,  1886, 
President  Cleveland  accepted  said  section  of  the  road, 
and  approved  the  recommendations  of  Secretary  La- 
mar.  Nov.  30,  1886,  another  report,  by  another  set 
of  commissioners,  duly  appointed,  was  duly  made,  in 
which  they  found  another  section  of  the  Cascade 
branch  of  the  Northern  Pacific  railroad,  consisting 


18 

of  40  miles,  duly  completed,  and  on  said  day  Secretary 
Lamar   transmitted   to    President   Cleveland   the  said 
report,  with   a  recommendation  that  the  said  section 
of  40  miles  of  said  road  be  accepted;  and  on  Dec.  7, 
1886,  the  president  of  the  United  States  duly  accepted 
said  section  of  40  miles  and  approved  the  recommenda- 
tions of  the  secretary.     This  practical  construction  of 
the  company's   charter  for   14  years   by  the  president 
of  the    United    States   and    the   interior   department, 
whose  duty  it  was  and  is  to  construe  the  law  and  par- 
ticipate  in  carrying  its  various  provisions  into   effect, 
is  entitled  to  very  great  consideration. 

See  authorities  cited  on  pages  11,  12,  13,  14,  15,  16, 
20,  21,  22,  23,  of  the  argument  made  by  the  under- 
signed before  the  secretary  of  the  interior  Oct.  24, 
1887. 

The  Burlington  &  Missouri  River  railroad  grant 
provides  that  said  road  shall  be  constructed  by  sections. 
The  twentieth  section  of  the  act  reads  as  follows: 

"  SEC.  20.  Be  it  farther  enacted,  that  whenever  said 
Burlington  &  Missouri  River  Railroad  Company  shall 
have  completed  twenty  consecutive  miles  of  the  road 
mentioned  in  the  foregoing  section,  in  the  manner  pro- 
vided for  other  roads  mentioned  in  this  act,  and  the 
act  to  which  this  is  an  amendment,  the  president  of 
the  United  States  shall  appoint  three  commissioners  to  ex- 
amine and  report  to  him  in  relation  thereto;  and  if  it 
shall  appear  to  him  that  twenty  miles  of  said  road  have  been 
completed  as  required  hy  this  act,  that  upon  certificate  of 
said  commissioners  to  that  effect,  patents  shall  issue  conveying 
the  right  and,  title  to  said  lands  to  said  company  on  each  side 
of  said  road,  as  far  as  the  same  is  completed,  to  the  amount 
aforesaid,  and  such  examination,  report  and  conveyance,  by 
patents,  shall  continue  from  time  to  time  in  like  manner,  un- 
til said  road  shall  have  been  completed" 

13  U.  S.  Statutes,  356. 


19 

Under  said  -act  of  Congress,  selections  were  made  on 
the  extreme  western  end  of  the  road  in  Nebraska 
for  losses  on  the  eastern  end.  Patents  were  issued  for 
said  lands.  The  United  States  tiled  a  bill  in  equity  to 
set  aside  the  patents  for  one  reason,  among  others, 
that  selections  could  not  be  made  except  in  the  twenty 
mile  section  where  the  loss  occurred,  and  that  selec- 
tions could  not  be  made  on  the  western  end  of  the  road 
for  losses  on  the  eastern  end.  Upon  said  questions, 
the  supreme  court  of  the  United  States  said: 

"The  position  that  the  grant  was  in  aid  of  the  con- 
struction of  each  section  of  twenty  miles  taken  sepa- 
rately, and  must  be  limited  to  land  directly  opposite  to 
the  section,  is  equally  untenable.  The  grant  was  to  aid 
in  the  construction  of  the  entire  road,  and  not 
merely  a  portion  of  it,  though  the  company  was  not  to 
receive  patents  for  any  land  except  as  each  twenty 
miles  were  completed.  The  provision  allowing  it  to 
obtain  a  patent  then  was  intended  for  its  aid.  It  was 
not  required  to  take  it;  it  was  optional  to  apply  for  it 
then,  or  wait  until  the  completion  of  other  sections,  or 
of  the  entire  road.  The  grant  was  of 'a  quantity  of  land 
on  each  side  of  the  road,  the  amount  being  designated 
at  so  many  sections  per  mile,  with  a  privilege  to  re- 
ceive a  patent  for  land  opposite  that  portion  constructed 
as m often  as  each  section  of  twenty  miles  was  completed. 
If  this  privilege  were  not  claimed,  the  land  could  be 
selected  along  the  whole  line  of  the  road  without 
reference  to  any  particular  section  of  twenty  miles." 

U.  S.  vs.  B.  £  M.  If.  Co.,  !)8  U.  S.  .Reports,  p.  340. 

The  grant  to  the  Burlington  &  Missouri  River  Rail- 
road Company,  as  to  the  questions  under  considera- 
tion, is  in  all  respects  like  that  of  the  Northern  Pacific. 
See  the  analysis  thereof  and  the  authorities  cited  on 
pages  39,  40,41  and  42  of  the  argument  made  by  the 
undersigned,  Oct.  24,  1887. 

Section  4  of  the  granting  act  of  the  California  &  Ore- 


20 

gon  Railroad  Company  provides  for  the  building  of 
said  road  in  sections,  and  the  issuing  of  patents  as  said 
sections  are  completed.  Section  2  of  said  act  contains 
an  indemnity  provision.  In  the  construction  and  accept- 
ance of  said  road,  no  attention  whatever  was  paid  to 
said  provisions  of  section  4.  In  1870  commissioners 
were  appointed  to  report  upon  a  section  of  the  road 
consisting  of  77.6  miles.  The  commissioners  report- 
ed the  completion  of  said  77.6  miles  in  all  respects  as 
required  by  the  law.  The  secretary  of  the  interior 
transmitted  the  report  to  the  president  of  the  United 
States  with  a  recommendation  that  the  same  be  aecept- 
ed  and  the  patents  issued  thereon.  The  said  report 
A\ as  approved  by  the  president  of  the  United  States; 
and  in  1871  selections  were  made  in  the  indemnity 
belt  indiscriminately,  for  losses  occurring  at  any  place 
within  the  place  limits  of  said  road  as  constructed. 
Patents  were  issued  for  said  lauds  so  selected;  and  the 
right  to  make  such  selections  and  the  validity  of  its 
patents  were  involved  in  the  case  of  Ryan  vs.  Central 
Pacific  Railroad  Company.  5  Sawyer,  265.  That  able 
circuit  judge  said: 

"  Congress  manifestly  designed  the  grant  to  be  for 
the  full  amount  of  land  indicated;  and  the  only  object 
of  any  exception  at  all  of  the  classes  mentioned,  was  to 
prevent  interference  with  rights  existing  in  others. 
The  exception  was  not  designed  to  limit  the  grant. 

That  the  company  might  get 

its  full  quantity,  Congress  authorized  it  to  make  up  any 
deficiency  by  reason  of  any  prior  right  that  might  have 
attached  to  any  lands  specifically  designated,  by  select- 
ing other  lands  outside  the  designated  limits.  The 
intention  was  to  give  the  full  amount  of  land  desig- 
nated, and  the  only  care  of  Congress  was  not  to  inter- 
file with  rights  already  vested  arjd  still  existing. 

Any  less  favorable  construction  would 


21 

practically  nullity  this  grant  along  a  large  portion  of 
the  line,  or  any  other  grant  in  similar  terms  through- 
out a  large  portion  of  the  state.  * 
The  grant  now  in  question  was  intended  to  be  sub- 
stantial, not  a  mere  delusion  and  the  act  should  be 
construed  as  it  was  intended  to  be  understood  by  Con- 
gress at  the  time  it  was  passed.  *  *  * 
Any  construction  which  shall  deprive  the  defendant 
of  the  lands  which  it  reasonably  had  a  right  to  expect 
under  the  act  of  Congress,  would  wrongfully  wrest 
from  it,  by  judicial  sanction,  a  large  portion  of  the 
consideration  which  formed  the  inducement  to  the 
undertaking." 

The  second  section  of  said  act  of  Congress   reads  as 
follows: 

"  SEC.  2.  And  be  it  further  enacted,  That  there  be, 
and  hereby  is,  granted  to  the  said  companies,  their  suc- 
cessors and  assigns,  for  the  purpose  of  aiding  in  the 
construction  of  said  railroad  and  telegraph  line,  and  to 
secure  the  safe  and  speedy  transportation  of  mails, 
troops,  munitions  of  war,  and  public  stores  over  the 
line  of  said  railroad,  every  alternate  section  of  public 
land,  not  mineral,  designated  by  odd  numbers,  to  the 
amount  of  twenty  alternate  sections  per  mile  (ten  on 
each  side)  of  said  railroad  line;  and  when  any  of  said  al- 
ternate sections  or  parts  of  sections  shall  be  found  to 
have  been  granted,  sold,  reserved,  occupied  by  home- 
stead settlers,  pre-empted,  or  otherwise  disposed  of, 
other  lands,  designated  as  aforesaid,  shall  be  selected 
by  said  companies  in  lieu  thereof,  under  the  direction 
of  the  secretary  of  the  interior,  in  alternate  sections 
designated  by  odd  numbers  as  aforesaid,  nearest  to  and 
not  more  than  ten  miles  beyond  the  limits  of  said  first 
named  alternate  sections."  *  * 

14  Stat.  at  Large,  239. 

The  granting  wrords  and  indemnity  provisions  are,  in 
all  particulars,  like  those  of  the  Northern  Pacific.  Of 
said  section  Judge  Sawyer  and  the  judges  of  the  su- 
preme court  of  the  United  States,  say:  "The  inten- 
tion was  to  give  the  full  amount  of  land  designated." 
The  amount  designated  is  twenty  sections  per  mile. 


22 

We  are  not  now  arguing  that  the  Northern  Pacific 
Railroad  Company  is  entitled  to  twenty  or  forty  sec- 
tions per  mile  regardless  of  the  curvature  or  sinuosity 
of  its  road,  but  we  are  arguing  that  the  grant  should 
receive  that  construction  which  will  enable  the  com- 
pany to  obtain  the  number  of  sections  mentioned  in  the 
grant  if  they  were  ever  in  place  and  within  the  enumer- 
ation found  in  section  3,  for  which  selections  might 
be  made.  In  the  acts  granting  lands  to  the  states  the 
grants  are  generally  of  the  alternate  sections  within  a 
certain  limit  with  the  right  to  select  for  certain  specific 
losses  within  a  larger  limit.  The  courts  and  the  de- 
partment in  construing  such  grants  have  uniformly 
said  that  the  object  in  creating  the  indemnity  or  larger 
belt  is  to  enable  the  company  to  obtain  in  that  indem- 
nity or  larger  belt  the  specific  losses  in  place  limits; 
and  such  construction  has  been  placed  upon  such  acts 
as  to  carry  out  that  legislative  intent.  The  intention 
of  Congress  in  the  grant  to  the  Northern  Pacific  is 
more  plainly  expressed  than  in  any  of  these  earlier 
grants.  It  is  a  grant  to  the  amount  of  ten  sections  in 
the  states  and  twenty  in  the  territories  on  each  side  of 
the  road.  In  the  argument  made  Oct.  24,  1887,  we 
analyzed  the  Burlington  &  Missouri  River  grant,  which 
is  confessedly  one  of  quantity.  The  only  difference,  as 
there  shown,  between  the  grant  to  the  Northern  Pacific 
and  that  to  the  Burlington  &  Missouri  River  Railroad 
Company  is  that  the  limitations  are  expressed  in  the 
one  and  implied  in  the  other.  The  only  argument  that 
is  possible  to  be  made  on  behalf  of  the  government  on 
the  grant  to  the  Northern  Pacific  is  that  it  is  a  grant 
of  twenty  sections  in  the  state  and  forty  in  the  terri- 


23 

tories,  provided  that  number  of  sections  ever  existed 
in  the  place  and  indemnity  limits  prescribed  in  the  act. 
The  grant  of  the  alternate  sections  to  the  amount  of 
twenty  sections  in  the  state  and  forty  in  the  territories 
would  be  purely  a  grant  of  quantity  were  it  not  for  the 
provisions  in  said  section  3,  that  the  place  lands  must 
be  taken  within  a  certain  limit,  and  the  claim  that  se- 
lections can  only  be  made  in  the  indemnity  limit  for 
certain  losses  in  the  place  limits.  One  object  of  using 
the  word  "amount"  in  section  3,  as  stated  by  Circuit 
Judge  Sawyer,  is  to  plainly  and  clearly  indicate  the  in- 
tention of  Congress  not  to  limit  the  company  to  sec- 
tions of  its  road,  in  its  right  to  select  in  the  indemnity 
belt. 

The  doctrines  of  res  adjadicata  estoppel,  and  the  rules 
of  statutory  construction  hereinafter  applied  to  the  sec- 
ond proposition  submitted  for  your  consideration,  are 
applicable  to  the  point  we  have  been  considering ;  and 
hereafter,  to  a  great  extent,  we  will  consider  the  propo- 
sitions together. 

II. 

Can  selections  in  the  first  indemnity  limit  be  made 
in  a  state  or  territory  other  than  that  in  which  the  loss 
occurred. 

In  considering  this  proposition  we  assume  that  the 
joint  resolution  of  May  31,  1870,  created  a  second  in- 
demnity limit;  that  it  conferred  the  privilege  upon  the 
company  of  going  into  that  second  indemnity  belt  for 
certain  classes  of  losses,  provided  they  could  not  be 
found  in  the  first;  that  this  additional  privilege  so  con- 
ferred, for  the  reasons  hereafter  stated,  did,  and  does, 


24 

not  limit  or  repeal  the  right  of  selections  conferred 
upon  the  company  by  the  original  charter.  Section  3 
of  the  charter  approved  July  2,  1864,  reads  as  follows: 

USEC.  3.  And  be  it  further  enacted,  That  there  be, 
and  hereby  is,  granted  to  the  Northern  Pacific  Railroad 
Company,  its  successors  and  assigns,  for  the  purpose 
of  aiding  in  the  construction  of  said  railroad  and  tele- 
graph line  to  the  Pacific  coast,  and  to  secure  the  safe 
and  speedy  transportation  of  the  mails,  troops,  muni- 
tions of  war  and  public  stores  over  the  route  of  said 
line  of  railway,  every  alternate  section  of  public  land, 
not  mineral,  designated  by  odd  numbers,  to  the 
amount  of  twenty  alternate  sections  per  mile,  on  each 
side  of  said  railroad  line,  as  said  company  may  adopt, 
through  the  territories  of  the  United  States,  and  ten 
alternate  sections  of  land  per  mile  on  each  side  of  said 
railroad  whenever  it  passes  through  any  state,  and 
whenever  on  the  line  thereof,  the  United  States  have 
full  title,  not  reserved,  sold,  granted  or  otherwise  ap- 
propriated, and  free  from  pre-emption  or  other  claims 
or  rights  at  the  time  the  line  of  said  road  is  definitely 
fixed,  and  a  plat  thereof  filed  in  the  office  of  the  com- 
missioner of  the  general  land  office;  and  whenever, 
prior  to  said  time,  any  of  said  sections  or  parts  of  sec- 
tions shall  have  been  granted,  sold,  reserved,  occupied 
by  homestead  settlers,  or  pre-empted,  or  otherwise  dis- 
posed of.  other  lands  shall  be  selected  by  said  company 
in  lieu  thereof,  under  the  direction  of  the  secretary  of 
the  interior,  in  alternate  sections,  and  designated  by 
odd  numbers,  not  more  than  ten  miles  beyond  the 
limits  of  said  alternate  sections.  Pro- 

vided further ,  That  all  mineral  lands  be,  and  the  same 
are  hereby,  excluded  from  the  operations  of  this 
act,  and  in  lieu  thereof  a  like  quantity  of  unoccu- 
pied and  unappropriated  agricultural  lands,  in  odd 
numbered  sections,  nearest  to  the  line  of  said  road  may 
be  selected  as  above  provided." 

We  will  discuss  the  said  second  proposition  and  said 
section  3  under  the  following  heads: 

1.  The  indemnity  belt  provided  for  in  said  section 
3  is  not  limited  by  state,  territorial,  twenty-five  mile  or 


25 

other  section,  and  the  department  has  neither  right  nor 
authority  to  divide  said  belt  into  sections  or  limits  not 
prescribed  in  the  charter. 

±     Estoppel. 

3.     Resjudicata. 

First:  In  the  first  section  of  the  act  of  July  2, 1864, 
it  is  provided  that  "said  corporation  is  hereby  author- 
ized and  empowered  to  lay  out,  locate,  construct,  fur- 
nish, maintain  and  enjoy  a  continuous  railroad  and 
telegraph  line,  with  the  appurtenances,  namely,  be- 
ginning at  a  point  on  Lake  Superior,  in  the  state 
of  Minnesota  or  Wisconsin;  thence  westerly,  by  the 
most  eligible  railroad  route,  as  shall  be  determined  by 
said  company,  within  the  terrritory  of  the  United 
States,  on  a  line  north  of  the  forty-fifth  degree  of  lati- 
tude, to  some  point  on  Puget  Sound." 

And  in  section  2,  the  right  ot  way  for  said  continu- 
ous line  of  road  is  granted.  Arid  in  section  3,  the  odd 
sections,  to  the  extent  of  ten  in  the  states  and  twenty  in 
the  territories,  on  each  side  of  said  continuous  line  and 
right  of  way  are  granted,  if  found  in  place;  and  if  not, 
the  right  to  select  for  those  reserved,  sold,  granted,  or 
otherwise  appropriated  prior  to  the  time  of  filing  the 
map  of  definite  location,  in  the  indemnity  limit  in  said 
section  is  provided  for.  The  selections  are  to  be  made 
in  a  belt  ten  miles  in  width  within  the  termini  of  said 
road.  They  are  to  be  made  by  the  company  under  the 
directions  of  the  secretary  of  the  interior.  The  belt  of 
limit  is  described  as  a  space  not  more  than  ten  miles 
"  beyond  the  limits  of  said  alternate  sections."  The  words 
"  the  limits  of  said  alternate  sections  "  apply  unques- 
tionably to  the  entire  number  of  sections  granted  the 

company,  from  Lake  Superior  to  the  sound.     No  other 
4 


26 

alternate  sections  are  referred  to  in  said  section  3,  or  in 
said  act  of  Congress,  to  which  the  words  "  said  alternate 
sections"  can  apply,  except  the  entire  number  along 
the  continuous  line  of  road  provided  for  in  said 
sections  1,  2,  and  3,  No  limit  is  here  prescribed  as  to 
the  place  of  selecting  indemnity  lands,  except  that  the 
selections  shall  be  made  of  the  odd  numbered  alternate 
sections  in  a  space  not  more  than  ten  miles  beyond  the 
limits  of  said  alternate  sections.  The  specific  mention 
of  the  limitation,  that  the  selections  shall  be  made 
within  a  space  of  ten  miles  in  width  and  along  said 
alternate  sections,  is  the  exclusion  of  all  other  limita- 
tions. "Expressio  unius  est  exdusio  alterius"  Under 
said  section  agricultural,  timber,  coal  and  iron  lands 
may  be  selected.  The  second  proviso  to  section  3 
contains  a  further  limitation  upon  the  right  of  selec- 
tion, and  makes  plainer  the  rule  we  are  contending  for. 
Under  that  proviso,  selections  for  mineral  land  losses 
can  not  be  made  of  timber,  coal  or  iron  lands.  They 
can  only  be  made  of  unoccupied  and  unappropriated 
agricultural  lands.  They  must  be  the  odd  num- 
bered public  sections  "nearest  the  line  of  said  road  as 
above  provided."  "Nearest  the  line  of  the  road  "has 
been  uniformly  construed  to  be  the  nearest  public 
odd  numbered  sections  in  the  indemnity  belt,  and 
in  that  sense  "  nearest  the  line  of  the  road "  is 
synonymous  with  "  not  more  than  ten  miles  beyond 
the  limits  of  said  alternate  sections."  Perhaps  there 
may  be  a  distinction.  Selections  for  mineral  losses 
must  be  taken  out  of  the  first  tier  or  tiers  of  sections 
adjoining  lands  in  place  along  the  line  of  the  road, 
while  as  to  all  other  selections,  they  may  be  made  at 


27 

any  place  in  the  indemnity  limit.  These  specific  limita- 
tions and  qualifications  certainly  exclude  all  others. 
The  supreme  court  of  the  United  States,  in  the  case  of 
United  States  vs.  Burlington  &  Missouri  River  Railroad 
Company,  said :  "  There  is  here  no  limitation  of  dis- 
tance from  the  road  within  which  the  selection  is  to  be 
made,  and  the  court  can  make  none." 
98  U.  S.  339. 

This  rule  is  applicable  here.  No  limitation  is  pre- 
scribed in  the  acts  within  which  selections  are  to  be 
made  except  as  above  enumerated,  that  they  must  be 
within  said  indemnity  limit;  and  the  interior  department 
can  not  make  qualifications  and  limitations  not  provided 
for  and  prescribed  in  the  act.  "  The  grant  was  to  aid  in 
the  construction  of  the  entire  road,  and  not  merely  a 
portion  of  it."  The  right  conferred  upon  the  company 
by  said  section  3  is  to  make  selections  within  a  certain 
indemnity  belt,  and  not  within  portions  or  parts  of  that 
belt. 

98  U.  S.  340. 

4  Dillon's  Circuit  Court  Reports,  297. 

It  will  be  conceded  that  the  company  has  the  right 
to  select  in  the  indemnity  limit  coterminus  with  a  sec- 
tion of  the  road  as  constructed  and  accepted  by  the 
president  of  the  United  States,  for  a  loss  occurring  else- 
where within  said  section.  On  Nov.  18, 1881,  a  section 
of  the  road  running  from  the  Little  Missouri  river  in 
Dakota  to  a  point  in  Montana,  seventy-five  miles  west 
of  said  river,  was  examined  and  accepted.  The  secre- 
tary of  the  interior  recommended  that  the  patents  be 
issued  for  said  lands,  and  the  president  of  the  United 


28 

States  approved  said  recommendations.  Nov.  26, 1881, 
another  section  of  the  said  road  two  hundred  miles  in 
length  was  accepted  by  the  president,  extending  from 
Wallula,  Washington  territory,  to  Eight  Mile  Prairie 
in  Idaho  territory.  Aug.  31,  1882,  a  section  running 
from  a  point  near  Thompson,  Minn.,  to  Superior  City, 
Wis.,  was  in  the  same  manner  approved,  accepted,  and 
the  patents  directed  to  be  issued.  Oct.  9,  1882,  another 
section  was  accepted  and  patents  recommended  to  be 
issued  in  the  same  manner,  extending  from  Idaho  into 
Montana.  No  reason  can  be  suggested  why  a  selection 
for  indemnity  in  Idaho  can  not  be  made  for  a  loss  oc- 
curring in  the  same  section  of  the  road,  immediately 
across  the  territorial  line.  No  reason  can  be  assigned 
why  a  selection  can^  not  be  made  in  the  indemnity  belt 
on  the  eastern  end  of  the  section  extending  from  Wis- 
consin into  Minnesota  for  a  loss  on  the  western  end  of 
said  section.  In  construction,  state  and  territorial  lines 
are  not  known  or  recognized.  No  attention  whatever 
has  been  paid  to  them  in  the  acceptance  of  said  sections 
by  the  interior  department  or  the  president  of  the 
United  States.  The  land  therein  is  common  to  the  road, 
and  granted  in  Wisconsin  as  well  as  Minnesota  for  the 
same  purpose.  The  loss  to  the  government  is  the  same, 
no  matter  where  the  selection  is  made.  The  advantage 
to  the  government  by  the  construction  of  the  road  and 
securing  it  for  postal  and  military  purposes,  is  neither 
enlarged  nor  diminished  by  selecting  in  one  state  for  a 
loss  in  another.  This  proposition  is  very  clearly  es- 
tablished by  the  decisions  of  the  interior  department 
and  the  courts  in  relation  to  the  Winona  &  St.  Peters 
Kail  road  Company.  The  grant  to  that  company,  with 


29 

provisions,  as  we  have  heretofore  shown,  requiring  the 
road  to  be  constructed  in  sections,  extends  from  Minne- 
sota into  the  territory  of  Dakota.  That  grant  is  pecu- 
liar in  this:  It  was  made  to  the  territory  of  Minnesota 
for  the  construction  of  a  road,  the  termini  of  which 
was  within  the  then  territorial  limits,  but  which,  at  the 
time  of  the  grant,  as  is  clearly  indicated  therein,  it  was 
the  intention  of  Congress  should  be  located  partly  in 
the  future  state  of  Minnesota  and  territory  of  Dakota. 
The  grant  was  made  on  the  third  day  of  March,  1857. 
On  the  twenty-sixth  day  of  February,  1857,  a  week  prior 
to  the  grant  aforesaid,  Congress  passed  an  enabling  act 
for  Minnesota.  (11  Statutes  at  Large,  p.  166.)  By  this 
enabling  act,  the  western  boundary  of  the  proposed  new 
state  of  Minnesota  was  designated  where  it  was  after- 
wards established  and  now  exists.  Under  that  enab- 
ling act,  the  state  was  organized  and  admitted  into  the 
Union  in  the  succeeding  year.  In  the  case  of  the  St.  Paul, 
Minneapolis  &  Manitoba  Railway  Company  vs.  Phelps, 
speaking  of  the  intention  of  Congrsss  relative  to  the 
grant  made  March  3, 1857,  and  the  said  state  boundary, 
Judge  Brewer  said  : 

"7  think  it  obvious  that  Congress  had  in  view  the 
probable  organization  of  Minnesota  as  a  state  under  the 
enabling  act  just  passed.  It  speaks  of  the  future  state 
of  Minnesota  as  though  the  admission  of  a  state  with  that 
name  was  to  be  soon  expected.  ***** 
/  am  aware  that  in  this  act  provision  was  made  for  a  road 
running  beyond  the  western  boundary  of  the  proposed  state 
and  into  the  present  territory  of  Dakota,  with  a  grant  of  ad- 
jacent lands,  which  could  be  satisfied  only  by  lands  in  Da- 
kota, and  which  was  in  fact  so  satisfied.  But  the  fact  that 
Congress  provided  for  a  road  outside  of  the  state  limits  does 
not  make  against  the  claim  that  it  intended  only  the  ordinary 
provision  for  a  road  wholly  within  the  state." 
26  Federal  Rep.  569. 


30 

The  road  spoken  of  by  Judge  Brewer  as  extending 
beyond  tbe  boundary  of  the  state  into  the  territory  of 
Dakota  is  the  Winona  &  St.  Peter  railroad.  The  pro- 
visions of  the  act  of  Congress  requiring  the  road  to  be 
constructed  in  sections,  have  been  in  this  argument 
cited.  Under  the  act  of  March  3,  1857,  said  company 
was  permitted  by  the  department  to  select  200,000  acres 
in  Dakota  for  losses  in  Minnesota. 

The  opinion  of  Judge  Brewer  that  Congress,  in 
making  the  grant  of  March  3,  1857,  must  have  in- 
tended to  provide  for  the  construction  of  the  railroad 
beyond  the  limits  of  the  state,  is  sustained  by  the 
history  of  every  territory  heretofore  admitted  into  the 
Union  as  a  state.  No  instance  can  be  cited  were  the 
people  of  the  territory  rejected  an  act  of  Congress  per- 
mitting them  to  form  a  state  government.  Every  such 
offer  on  the  part  of  the  federal  government  has  been 
eagerly  accepted  by  the  people  to  whom  it  has  been 
addressed.  When  Congress  was  framing  the  language 
of  the  grant  of  March  3,  1857,  that  body  had  no  more 
reason  to,  and  probably  did  no  more,  doubt  that  the  state 
of  Minnesota  would  speedily  come  into  the  Union  under 
the  enabling  act  of  February  26th  of  that  year,  than 
that  the  dome  of  the  capitol  in  which  it  was  sitting 
would  stand  for  the  ensuing  fifteen  minutes  only.  It 
may  be  further  observed  that  Congress  enlarged  said 
grant,  increasing  it  from  five  to  ten  sections  per  mile. 
13  Statutes  at  Large,  526.  This  grant  was  made  long 
after  the  admission  of  the  state  and  organization  of 
Dakota  territory.  Selections  under  said  act  were  made 
in  Dakota  for  losses  in  Minnesota.  Of  said  grant,  Mr. 
Justice  Field,  speaking  forthe  supreme  court,  said: 


31 

"Nor  was  it  the  purpose  of  Congress  to  lessen  the 
extent  of  its  aid  because  it  might  ultimately  be  found 
that,  at  the  time  of  its  grant,  or  when  the  route  was 
determined,  portions  of  the  land  designated  had  already 
been  disposed  of  or  pre-emption  rights  had  attached  to 
them.  The  policy  of  the  government  was  to  keep  the 
public  lands  open  at  all  times  to  sale  and  pre-emption, 
and  thus  encourage  the  settlement  of  the  country, 
and,  at  the  same  time,  to  advance  such  settlement  by 
liberal  donations  to  aid  in  the  construction  of  railways. 
The  acts  of  Congress,  in  effect,  said :  '  We  give  to  the 
state  certain  lands  to  aid  in  the  construction  of  railways 
lying  along  their  respective  routes,  provided  they  are 
not  already  disposed  of,  or  the  rights  of  settlers  under 
the  laws  of  the  United  States  have  not  already  attached 
to  them,  or  they  may  not  be  disposed  of,  or  such  rights 
may  not  have  attached  when  the  routes  are  finally  de- 
termined. If  at  that  time  it  be  found  that  of  the  lands 
designated  any  have  been  disposed  of,  or  rights  of  set- 
tlers have  attached  to  them, other  equivalent  lands  may 
be  selected  in  their  place,  within  certain  prescribed  lim- 
its.' The  encouragement  of  settlement  by  aid  for 
the  construction  of  railways  was  not  intended  to  inter- 
fere with  the  policy  of  encouraging  such  settlement  by 
sales  of  the  land,  or  the  grant  of  pre-emption  rights. 
It  follows  that  in  our  judgment  the  indemnity  clause 
covers  losses  from  the  grant  by  reason  of  sales  and  the 
attachment  of  pre-emption  rights  previous  to  the  date 
of  the  act,  as  well  as  by  reason  of  sales  and  the  attach- 
ment of  pre-emption  rights  between  that  date  and  the 
final  determination  of  the  route  of  the  road. " 

Winona  f  St.  Peter  It.  E.  Co.  vs.  Barney,  113  U.  S. 
618. 

Two  propositions  are  by  the  supreme  court  in  the 
foregoing  case  clearly  enunciated,  applicable  to  the 
Northern  Pacific  road. 

First.  In  making  the  legislative  grant,  it  was  not 
the  intention  of  Congress  that  the  grant  to  the  com- 
pany should  be  lessened  by  the  ultimate  finding  by  the 
company  at  the  time  of  its  definite  location,  that  por- 


32 

tions  of  the  lands  intended  to  be  granted  had  been  dis- 
posed of  by  the  government.  It  was  clearly  the  inten- 
tion that  within  the  place  and  indemnity  limits 
provided  for,  the  company  should  have  the  amount 
mentioned  in  the  act,  and  should  have  indemnity,  to 
the  extent  of  the  losses  specifically  enumerated.  It  is 
only  for  such  specific  losses  that  the  Northern  Pacific  has 
made  its  selection.  It  is  only  for  such  specific  losses 
that  the  company  claims  the  right  to  go  into  Wiscon- 
sin for  losses  in  Minnesota,  or  into  Dakota  for  losses  in 
Montana. 

Second.  That  the  Northern  Pacific  Railroad  Com- 
pany, under  the  original  charter,  is  authorized  to  make 
selections  for  losses  occurring  before  July  2,  1864,  as 
well  as  between  that  date  and  the  date  of  filing  the 
map  of  definite  route.  As  to  losses  occurring  prior  to 
July  2,  1864,  no  lawyer  will  argue  that  the  joint  reso- 
lution of  May  31,  1870,  has  any  .bearing,  if  it  is  once 
conceded,  which  it  must  be  in  this  controversy,  that 
said  joint  resolution  created  a  second  indemnity  belt 
Said  joint  resolution  is  without  a  repealing  clause.  It 
repeals  the  original  charter  only  so  far  as  there  is  irre- 
concilable conflict.  As  to  selections  for  losses  before 
July  2,  1864,  there  is  no  such  irreconcilable  conflict, 
even  if  it  be  conceded  that  said  joint  resolution  did  not 
create  a  second  indemnity  limit. 

It  is  suggested  by  way  of  a  dictum  in  the  opinion  of 
the  secretary  of  the  interior,  that  selections  can  not  be 
made  in  Dakota  for  losses  in  Minnesota,  for  the  reason 
that  by  the  original  charter,  10  sections  on  each  side  of 
said  road  are  granted  in  the  states  and  20  in  the  terri- 
tories. This  contention  is  fully  answered  by  the  opin- 


33 

ion  of  Mr.  Justice  Field,  in  the  case  heretofore  in  this 
argument  twice  cited,  of  Denny  PS.  Dodson.  In  that 
opinion,  Justice  Field  decided  that  if  the  road  was 
located  in  Washington  territory  adjoining  the  Oregon 
boundary,  the  company  would  be  entitled  to  its  20 
sections  per  mile  on  each  side  of  itis  road,  which  includes 
20  sections  per  mile  of  place  lands  in  the  state  of  Ore- 
gon on  the  south  side  of  the  road.  It  would  necessari- 
ly follow  that  if  the  20  sections  per  mile  were  not 
found  in  place  limits  on  the  south  side  of  the  road  in 
the  state  of  Oregon,  that  the  company  would  have  the 
right  to  select  within  the  indemnity  limits  for  losses 
prescribed  in  the  act.  Mr.  Justice  Field's  decision 
clearly  answers  the  claim  that  only  10  sections  per 
mile  on  each  side  of  the  road  can  be  taken  in  a  state.  The 
location  of  the  road  governs  as  to  the  amount.  The  in- 
demnity belt  is  common  to  the  entire  road,  without 
reference  to  any  boundary  or  limitation,  except  those 
specifically  prescribed. 

It  is  also  claimed  that,  inasmuch  as  but  half  the 
width  of  land  is  granted  in  the  states  as  in  the  terri- 
tories, Congress  intended  to  limit  the  indemnity  to 
state  and  territorial  lines.  Persons  making  such  con- 
tention seem  to  have  forgotten  that  the  indemnity  limit 
is  the  same  width,  and  governed  by  the  same  provisions, 
in  the  states  as  in  the  territories.  The  grant  to  the 
Northern  Pacific  is  specific  as  to  the  amount,  limita- 
tions and  losses.  That  construction  should  be  placed 
upon  it  which  will  give  the  company  the  amount  speci- 
fically named,  within  the  limits  specifically  enumerated, 
to  the  extent  of  the  losses  specifically  defined.  Such 
has  been  the  construction  of  every  other  land  grant 
5 


34 

by  the  department  and  the  courts;  and  no  reason 
can  be  assigned  for  departing  from  that  uniform  con- 
struction in  the  case  of  the  Northern  Pacific. 

If  state  or  territorial  boundaries  are  to  control  the 
selection  limits  by  implication,  without  necessity  there- 
for, and  contrary  to  the  intent,  as  clearly  shown  by  the 
plain  language  of  the  granting  act  and  its  history,  the 
question  will  arise  as  to  whether  it  is  the  state  and  ter- 
ritorial boundaries  at  the  date  of  the  enactment  of  the 
original  charter,  July  2,  1864,  the  joint  resolution  of. 
May  31,  1870,  the  filing  of  maps  of  definite  location, 
of  construction  of  the  road,  of  prescribing  the   direc- 
tion by  the  secretary  under  which  the  selections  are  to 
be  made,  of  making  the  selections,  or  issuing  the  pat- 
ents.    Certainly  not  the  date  of  the  granting  act,  for 
at  that  time  the  entire   grant  was  a  float,  the  company 
had  not  accepted  the  provisions  of  the  act,  no  rights 
at  that  time  had  vested  thereunder.     Certainly  not  at 
the  date  of  the  joint   resolution,  for   it   contains    no 
words  of  limitation  as  to  sections  or  other  boundaries, 
except  those  relating  to  the  second  indemnity  belt.     Nor 
of  filing  the  maps  of  definite  location  or  construction. 
The  road  was  not  constructed  on  maps  filed  in  twenty- 
five  mile  sections.     The  sections  as  constructed  did  not 
terminate  at  the   state   or  territorial  boundaries.     No 
attention  whatever  was  paid  to  such  boundaries  by  the 
company  in  filing  its  map  of  definite  location  and  the 
construction  of  the  various  sections  of  road,  or  by  the 
government  in  the  acceptance  of  said   maps  and  sec- 
tions.   The  date  of  prescribing  directions  for  the  selec- 
tions by  the  interior  department  can  not  govern;  such 
instructions  and  selections  have  been  changed  several 


35 

times  and  will  probably  be  further  modified  before  the 
selections  are  all  completed.  The  date  of  the  selections 
can  not  govern.  They  have  been  made  at  differenttim.es, 
in  different  land  districts,  as  the  various  directions  were 
changed.  The  original  directions  required  the  company 
to  file  with  its  selections  a  list  of  its  losses.  Selection 
lists  were  filed  under  said  directions.  Subsequently 
the  directions  were  changed  and  the  company  was  re- 
quired to  file  its  selections  without  designating  its 
losses.  Under  said  directions  the  company  tiled  new 
selection  lists.  In  1885,  said  directions  by  the  depart- 
ment were  a  third  time  changed,  and  by  said  directions 
the  company  was  required  to  file  its  selection  lists,  ac- 
companying the  same  with  a  designation  of  its  losses. 
Territorial  and  state  boundaries,  at  the  date  of  issuing 
patents,  can  not  apply  for  the  reason  that  a  number  of 
patents  have  been  issued,  differing  in  the  date. 

The  boundaries  of  Dakota,  Montana,  Idaho  and 
Washington  territory  have  changed  in  the  past,  and 
unquestionably  before  the  surveys  along  the  line  of  the 
road  are  completed  by  the  government,  arid  all  of  the 
Northern  Pacific  selections  are  made,  other  changes 
will  take  place.  A  bill  passed  Congress  during  its  last 
session  annexing  Idado  to  Washington  territory,  and 
only  failed  to  become  a  law  by  the  president's  failure 
to  approve  it.  Bills  are  now  pending  in  Congress  for 
the  division  of  Dakota,  annexing  part  of  Montana  to 
Idaho,  etc.  Unquestionably  selections  may  be  made 
in  Missoula  county,  in  Montana,  for  losses  in  Lewis  and 
Clarke  county.  If  the  bill  now  pending  in  Congress 
should  pass,  patents  would  be  issued  for  such  selections 
so  made  for  lands  in  Idaho  territory  for  losses  in  Mon- 


tana.  The  foregoing  suggestions  are  sufficient  to  show 
that,  if  the  indemnity  belt  is  divided  by  state  or  terri- 
torial boundaries,  the  company's  rights  are  not  iixed 
by  the  charter,  tiling  of  the  map  of  definite  location 
or  the  construction  of  the  road  and  the  acceptance 
by  the  company  of  the  terms  and  conditions  of  the  act  of 
July  2,  1864,  and  the  resolutions  amendatory  thereof; 
and  that  the  quantity  of  land  granted,  or  intended 
to  be  granted,  does  not  depend  upon  the  granting 
clause  and  the  provisions  and  limitations  plainly  ex- 
pressed in  the  act,  but  to  a  great  extent  depends  upon 
the  establishment  in  the  future  of  territorial  and  state 
boundaries.  Tt  must  be  conceded  that  if  Idaho  and 
Washington  territories  were  united  as  one  territory, 
that  the  territorial  boundary  line  would  be  obliterated 
and  selections  could  be  made  any  place  within  the  in- 
demnity belt  in  that  territory  for  losses  in  another. 
Surveys  of  the  lands  are  provided  for  in  section  6  of 
the  company's  charter  without  reference  to  territorial 
or  state  boundaries,  or  twenty-five  mile  sections.  That 
section  requires  surveys  to  be  made  forty  miles  in 
width  on  each  side  of  the  entire  line  when  the  general 
route  is  fixed  as  fast  as  the  road  is  constructed. 

It  may  be  further  observed  that  the  vesting  of  the 
title  to  the  place  lands  in  the  company  is  not  depend- 
ent upon  the  completion  of  sections  of  the  road,  or  the 
territorial  or  state  lines.  The  grant  is  in  prcesenti,  and 
attaches  to  the  specific  place  tracts  at  the  date  of  the 
filing  of  map  of  definite  location;  but  by  section  4  the 
company  is  restrained  from  alienating  or  selling  its 
lands  until  the  completion  and  acceptance  of  the  sec- 
tions of  the  road  coterminus  with  said  lands. 


37 

In  this  connection  we  desire  to  pay  a  little  more  at- 
tention to  the  act  of  March  3,  1857,  granting  lands  to 
the  state  of  Minnesota.  The  indemnity  lands  in 
section  1  of  said  act  are  selected  ufrom  the  lands  of 
the  United  States  nearest  to  the  tiers  of  sections  above 
specified,  etc."  The  words,  "  sections  above  specified," 
in  said  act  are  synonymous  with  "  said  alternate  sec- 
tions" used  in  defining  the  indemnity  belt  in  the  act  of 
July  2, 1864.  Section  4  of  the  act  of  March  3,  1857, 
provides  that,  after  the  completion  of  the  first  20 
miles  of  road,  on  the  completion  of  each  continuous 
20  miles  thereafter,  the  company  may  sell  120  sec- 
tions of  land  for  said  20  continuous  miles  of  road  as 
aforesaid;  and  it  is  specifically  provided  in  section  4 
that  the  said  120  sections  of  land  must  be  included 
within  a  continuous  length  of  20  miles  of  such  roads 
or  branches.  In  the  first  section  of  said  act  Congress 
provides  for  the  appointment  of  agents  to  make  selec- 
tions of  lands  by  the  future  state.  We  have  shown 
conclusively  by  the  history  of  the  act  that  it  was  the 
intention  of  Congress  to  provide  for  the  building  of 
the  Winona  &  St.  Peter  road  into  the  territory  of 
Dakota;  notwithstanding  such  an  intention,  and  the 
requirement  that  the  road  should* be  constructed  in 
sections  of  twenty  miles,  the  interior  department  arid 
the  courts  have  uniformly  held  under  said  act  that 
selections  could  be  made  in  Dakota  for  losses  in  Min- 
nesota. In  fact  there  were  no  losses  in  Dakota  within 
the  limits  of  said  grant  and  all  the  selections  of  the 
Winona  &  St.  Peter  road  made  in  Dakota  were  for 
losses  in  Minnesota. 

It  is  further  suggested  that  if  the  company's  con- 


38 

struction  of  the  act  is  correct,  the  railroad  would  ob- 
tain lands  in  a  territory  or  state  for  the  construction 
of  a  railroad  in  another.  This  proposition  is  conceded. 
Our  contention  is  that  we  are  expressly  authorized  to 
do  that  by  the  granting  act.  Mr.  Justice  Field,  in  the 
case  of  Denny  vs.  Dodson,  heretofore  cited,  said  ex- 
pressly that  the  company  was  entitled  to  the  grant  of 
lands  in  the  state  of  Oregon  for  a  road  constructed  in 
Washington  territory.  The  Cascade  branch  of  the 
Northern  Pacific  railroad,  no  part  of  which  is  in  the 
state  of  Oregon,  but  the  whole  thereof  is  in  the  terri- 
tory of  Washington,  is  the  road  involved  in  said  deci- 
sion. 

If  Congress  intended  that  the  company,  by  its  orig- 
inal charter,  should  be  limited  in  selections  to  sections 
of  twenty-five  miles,  or  state  or  territorial  boundaries,  it 
would  certainly  have  so  prescribed,  as  it  did  in  the 
joint  resolution  of  May  31,  1870,  in  extending  the  ad- 
ditional privilege  to  the  company  of  selecting  in  the 
second  indemnity  belt.  Congress  express^  limited 
the  company  in  the  exercise  of  such  privilege  to  the 
state  or  territory  in  which  the  loss  occurred. 

A  brief  reference  to  other  grants  made  by  Congress 
at  and  near  the  time  of  the  adoption  of  the  Northern 
Pacific  Railroad  Company's  original  charter,  will  ma- 
terially aid  one  in  construing  the  indemnity  pro- 
visions of  the  act  of  July  2,  1864.  In  making  the 
grant  to  the  California  &  Oregon  Railroad  Company 
July  25,  1866,  14  Statutes  at  Large,  239,  Congress,  in 
the  second  section  of  said  act,  enacted: 

"  The  lands  herein  granted  shall  be  applied  to  the 
building  of  said  road  within  the  states,  respectively, 
wherein  thev  are  situated." 


39 

No  such  language  is  found  in  the  charter  of  the 
Northern  Pacific,  or  necessarily  implied  from  any  lan- 
guage used  therein.  In  the  California  &  Oregon  act 
Congress  found  it  necessary  to  make  the  express  stat- 
utory reservation.  The  insertion  of  such  a  provision 
in  the  California  &  Oregon  grant  and  the  omission  of 
it  from  the  Northern  Pacific  grant,  is  a  strong  circum- 
stance showing  that  Congress,  in  the  Northern  Pa- 
cific act,  did  not  intend  such  a  limitation.  The  sug- 
gestion that  the  Northern  Pacific  is  limited  to  state  or 
territorial  lines  has  for  its  foundation  the  fact  that  in 
over  nine-tenths  of  the  grants  made  to  aid  in  the  con- 
struction of  railroads  in  the  United  States,  the  grant 
has  been  made  either  to  the  state  or  territory  in  which 
the  road  is  located,  or  to  a  road  with  its  termini  in 
a  state  or  territory.  There  is  certainly  nothing  in  the 
Northern  Pacific  charter  from  which  such  a  limitation 
can  be  fairly,  or  otherwise,  inferred.  The  Northern 
Pacific  road  is  continental.  The  grant,  as  we  have 
said,  is  made  to  aid  in  the  construction  of  the  entire 
road;  and  it  should  receive  that  construction  which 
will  enable  the  company  to  receive  in  place  and  in- 
demnity limits  the  sections  per  mile  mentioned  in  the 
act,  if  said  number  ever  were  in  place. 

United  States  vs.  B.  £  M.  R.  E.  Co.,  98  U.  S.  334. 

Same  case,  4  Dillon,  304. 

Railroad  Company  vs.  Courtright,  21  Wallace,  316. 

Barney  et  al  vs.  W.  £  S.  P.  R.  R.  Co.,  6  Fed.  Rep. 
802. 

Ryan  vs.  C.  £  P.  R.  R.  L.  Co.,  5  Sawyer,  264. 

U.  S.  vs.  C.  $  P.  R.  R.  Co.,  26  Fed.  Rep.  482. 

N.  P.  R.  R.  Co.  vs.  St.  P.,  M.  $>  M.  Ry.  Co.,  26 
Fed.  Rep.  558. 


40 

Courtwright  vs.  C.  R.  R.  Co.,  5  Am.  Railway  Rep. 

68,  78. 

St.  P.  £  C.  Ry.  Co.  et  al.  vs.  Brown,  24  Minn.  517. 
4  Brainards  Prec.  264. 
10  Copps  Land  Owner,  154. 
13  Copps  Land  Owner,  150. 
2  L.  D.  513,  516. 

Secretary  Lamar,  in  his  decision  of  Aug.  15,  1887, 
says : 

u  Internal  improvement  grants  are  all  of  the  same 
general  character,  having  the  same  great  object  in 
view,  and  are  all  part  of  one  grand  sjstem.  Laws  hav- 
ing in  view  the  same  general  purpose  should  be  con- 
strued in  pari  materia  unless  the  intention  of  the  legis- 
lature is  plainly  shown  to  be  otherwise.  Indeed,  were 
an  ambiguity  in  the  law,  it  should  be  read  in  the  light 
of  the  uniform  construction  of  other  acts  relating  to 
like  matters." 

In  this  we  fully  concur,  but,  at  the  same  time,  in 
construing  the  grant  to  the  Northern  Pacific  it  should 
be  constantly  kept  in  mind  that  more  than  nine-tenths 
of  all  the  railroad  grants  in  the  United  States  are  local, 
made  to  states  or  territories,  or  to  railroads  entirely 
within  a  state  or  territory,  while  that  of  the  Northern 
Pacific  reaches  from  the  lake  to  the  sound,  passing 
through  three  states  and  four  territories.  But  we  are 
content  to  apply  the  same  rules  to  the  Northern  Pa- 
cific as  have  heretofore  been  applied  to  other  grants.  In 
the  Burlington  &  Missouri  River  Railroad  grant  selec- 
tions of  indemnity  lands  on  the  extreme  western  end 
for  losses  on  the  extreme  eastern  end  were  sustained  by 
the  supreme  court  of  the  United  States ;  and  on  the 
Winona  &  St.  Peter  road  selections  were  allowed  in 
Dakota  for  losses  in  Minnesota.  But  it  is  said,  that  by 


41 

the  gauziest  kind  of  implication,  the  indemnity  limit  is 
divided  into  sections  or  by  political  divisions.  There 
are  no  express  words  creating  such,  or  any,  division  in 
the  indemnity  limit.  The  indemnity  limit  is  continu- 
ous and  specifically  described,  after  designating  the 
losses  for  which  selections  may  be  made,  as  fol- 
lows: "Other  lands  shall  be  selected  by  said  com- 
pany in  lieu  thereof,  under  the  direction  of  the  secre- 
tary of  the  interior,  in  alternate  sections  and  desig- 
nated by  odd  numbers,  not  more  than  ten  miles  be- 
yond the  limits  of  said  alternate  sections." 

"Said  alternate  sections"  refers  to  the  alternate  sec- 
tions granted  to  the  company  from  the  lake  to  the 
sound.  It  is  claimed  that,  by  implication,  section  4 
divides  the  indemnity  belt  into  sections  of  twenty-five 
miles.  As  we  have  shown,  that  section  is  directory 
and  not  mandatory;  it  applies  to  "place"  and  not  to 
"indemnity"  lands.  It  confers  the  privilege  upon  the 
company  to  have  its  patents  at  that  date  or,  at  its  op- 
tion, to  wait  until  other  sections,  or  the  entire  road,  is 
completed,  and  then  receive  its  patents.  It  is  further 
claimed  that,  because  the  place  limits  are  half  the 
width  in  the  states  that  they  are  in  the  territories,  it  is 
implied  therefrom  that  the  indemnity  in  the  states 
should  only  be  half  of  that  in  the  territories;  or  that 
the  indemnity  belt  was,  by  implication,  bounded  by 
state  or  territorial  lines.  The  express  limitation  in 
reference  to  place  lands,  without  any  such  limitation 
relating  to  indemnity  lands,  is  conclusive  that  no  such 
limitation  was  intended.  The  enumeration  of  certain 
limitations  is  the  exclusion  of  all  others  not  enumer- 
ated. The  grant  to  the  company  is  of  a  designated 
number  of  sections  of  land,  if  they  were  ever  in  place. 
6 


42 

The  grant  attaches  to  the  place  lands  at  the  date  of 
the  filing  of  the  map  of  definite  location,  with  the 
privilege  to  the  company  of  selecting,  wherever  to  be 
found  in  the  indemnity  belt,  for  all  the  losses  in  the 
place  limits.  The  right  to  make  selections  is  con- 
ferred in  general  terms.  No  limitations  are  inferable 
by  implication,  or  otherwise,  except  such  as  are  ex- 
pressly prescribed.  The  supreme  court  of  the  United 
States,  in  relation  to  a  grant,  in  so  far  as  the  question 
of  construction  is  concerned,  in  all  respects  like  that 
of  the  Northern  Pacific,  said: 

"As  to  the  intent  of  Congress  in  the  grant  to  the 
plaintiff,  there  can  be  no  reasonable  doubt.  It  was  to 
aid  in  the  construction  of  the  road  by  a  gift  of  lands, 
along  its  route,  without  reservation  of  rights,  except 
such  as  were  specifically  mentioned." 

Missouri,  etc.,  It.  E.  Co.  vs.  K  P.  Ry.  Co.,  97  U.S. 
497. 

Tested  by  the  above  rale  of  construction  of  statu- 
tory grants,  the  question,  in  so  far  as  the  Northern  Pa- 
cific is  concerned,  is  easy  and  plain.  First,  from  it,  it 
is  apparent  that  the  grant  of  lands  is  intended  to  be 
along  its  entire  road.  Second,  the  grant  is  without 
reservation  of  right  to  the  government  except  such  as 
are  specifically  mentioned.  In  the  grant  to  the  North- 
ern Pacific  there  is  no  specific  mention  of  political  di- 
visions or  twenty-five  mile  sections  in  so  far  as  the  in- 
demnity limit  is  concerned.  In  the  Burlington  &  Mis- 
souri River  Railroad  grant,  it  was  held  that,  in  making 
the  indemnity  selections,  the  company  could  go  at  right 
angles  to  the  road  at  any  distance  necessary  to  secure 
the  indemnity  lands. 

"  There  is  here  no  limitation  of  distance  from    the 


43 

road  within  which  the  selection  is  to  be  made,  and  the 
court  can  make  none" 

United  States  vs.  B.  £  M.  R.  R.  Co.,  98  U.  S.  339. 

Our  contention  is  that  there  is  no  limitation  in  the 
indemnity  limit  except  those  specifically  mentioned,  to- 
wit:  That  the  selections  must  be  made  along  the  alter- 
nate sections  granted  to  the  company  and  within  ten 
miles  thereof,  except  the  further  exception  relating  to 
mineral  lands;  and  the  court  can  make  no  other  limita- 
tions than  those  expressly  mentioned  in  the  act.  The 
case  now  under  consideration  is  much  stronger  than 
that  of  the  Burlington  &  Missouri  River  railroad. 
Here  there  are  express  limitations  prescribed  in  the 
act  limiting  the  company  to  selecting  within  a  certain 
belt,  and  by  the  familiar  rules  of  statutory  construc- 
tion, this  express  limitation  is  the  exclusion  of  all 
others. 

The  intention  of  Congress  in  providing  an  indemnity 
belt  in  the  granting  act  to  the  Northern  Pacific,  and  in 
all  similar  grants,  was,  and  is,  to  provide  a  limit  in 
which  the  company  or  companies  can  make  up  for  the 
losses  in  place  lands.  It  should  receive  that  construc- 
tion which  will  enable  the  company  in  this  broader 
belt  to  supply  all  the  losses  in  the  place  limits.  The 
rule  is  correctly  stated  in  the  note  in  12  American 
and  English  Railroad  Cases,  after  referring  to  a  large 
number  of  grants,  as  follows: 

"It  is  in  the  acts  above  referred  to  generally  provided 
that,  if  upon  the  location  of  the  road  sufficient  land  is 
not  left  ungranted  upon  either  side  thereof  within  the 
prescribed  limits  to  satisfy  the  railroad  company's 
claim,  it  shall  be  entitled  to  sufficient  land  to  make  up 
the  deficit  within  some  broader  limit." 

12  Am,  &  En.  R.  R.  Cases,  p.  285, 


44 

The  construction  mentioned  requires  the  interpola- 
tion after  the  words  "odd  numbers"  and  before  the 
words  "  not  more,"  in  the  third  section  of  the  act  of 
July  2, 1864,  of  either  "  within  the  section  of  the  road  in 
which  the  loss  occurred,"  or  "  within  the  state  or  terri- 
tory in  which  the  loss  occurred,"  making  the  paragraph 
read  as  follows: 

"  Other  lands  shall  be  selected  by  said  company  in 
lieu  thereof,  under  the  direction  of  the  secretary  of  the 
interior,  in  alternate  sections  and  designated  by  odd 
numbers,  within  the  section  of  road  in  which  the  loss 
occurred  (or  within  the  state  or  territory  in  which  the 
loss  occurred),  and  not  more  than  ten  miles  beyond  the 
limits  of  said  alternate  sections." 

Such  an  interpolation  is  not  warranted  by  any  lan- 
guage found  in  the  charter,  is  violative  of  the  intent  as 
clearly  expressed  therein,  and  the  construction  given 
by  the  department  and  the  courts  to  similar  grants. 

In  the  case  of  Courtright  vs.  Cedar  Rapids,  etc. 
Co.,  the  supreme  court  of  Iowa  said : 

"  The  defendants  claim  that  the  selection  should 
have  been  made  beginning  with  the  most  easterly  va- 
cant lands  in  the  grant  and  going  west  20  miles.  We 
observe  nothing  in  the  words  of  the  law  authorizing 
this  construction.  There  is  no  direction  as  to  the  selec- 
tion, except  that  it  be  confined  within  the  limits  of  20 
miles  along  the  road.  No  word  or  phrase  is  used  indi- 
cating an  attempt  to  express  the  will  of  the  legislature 
to  the  effect  claimed  by  defendants.  To  us  it  clearly 
appears  that  the  location  of  the  lands,  within  the  20 
continuous  miles  around,  \vas  left  to  the  choice  of  the 
railroad  company. 

"Advantages  are  attempted  to  be  pointed  out  to  the 
government  resulting  from  this  manner  of  selection. 
We  are  unable  to  admit  the  force  of  the  argument,  or 
to  see  clearly  the  advantages  to  the  United  States  which 
would  result  from  choice  of  the  lands  upon  the  eastern 
part  of  the  grant.  But  conceding  that  such  advantages 
are  real,  Congress  failing  to  secure  them  by  express 


45 

words,  we  certainly  can  not  interpolate  such  words  by 
construction  and  thus  create  a  reading  for  the  statute 
which  it  does  not  in  fact  possess." 

5  Am.  Ry.  Rep.  78. 

The  above  opinion  of  the  supreme  court  of  Iowa  was 
affirmed  by  the  supreme  court  of  the  United  States. 
21  Wall.  310. 

II. 

Estoppel. 

That  the  doctrine  of  estoppel  applies  to  the  govern- 
ment is  too  well  settled  to  be  questioned.  Dec.  13, 
1886,  Judge  Sawyer,  Judge  Sabin  concurring,  said: 

"The  interests  of  all  these  pre-emptioners  and  pur- 
chasers from  the  government,  as  well  as  of  the  parties 
holding  under  the  railroad  grants,  and  the  interests  of 
public  justice,  generally,  require  that  this  practical 
location  of  the  vague,  uncertain,  impracticable  eastern 
exterior  boundary  of  the  Moquelamos  grant  of  1855, 
acted  upon  by  all  departments  of  the  government,  by 
the  public  and  even  by  the  claimant  himself,  for  nearly 
a  quarter  of  a  century,  should  not  now  be  disturbed; 
that  the  government  should  be  now  estopped  from 
alleging  that  it  is,  or  should  be,  located  elsewhere. 
That  the  law  of  estoppel  in  a  proper  case  applies  to  the 
government.  See 

Clark  vs.  U.  S.,  95  U.  S.  Rep.  539,  544. 

Branson  vs.  Wirth,  17  Wall.  42. 

Stale  vs.  Milk,  11  Fed.   Rep.  359,  397,  and  cases 

cited." 

U.  S.  vs.  Mclaughlin,  30  Fed.  Rep.  161-2. 
<  'ohn  vs.  .Barnes,  5  Fed.  Rep.  326. 
A f tarns  Co.  vs.  B.  $  M.  R.  R.  Co.,  39  Iowa,  507. 
''>///.  r.v.  Andre,  33  Pickering,  224. 
Com.  vs.  Prop.,  10  Mass.  155. 
People  vs.  Soc.,  2  Payne,  545. 
vs.  Bailey,  19  Ind.  452. 


46 

People  vs.  Mainard,  15  Mich.  453. 

Bigelow  on  Estoppel,  2d  edition,  p.  246,  and  au- 
thorities there  cited. 

Wells  on  Res  Judicata  and  Stare  Decisis,  p.  4. 
In  1865  the  Northern  Pacific  Railroad  Company, 
after  examination  of  the  route  and  in  good  faith,  filed 
in  the  office  of  the  interior  department  its  map  of  gen- 
eral route  and  requested  a  withdrawal  of  the  lands  for 
its  benefit.  See  letter  of  Secretary  Usher  on  page  35 
of  the  argument  made  by  the  undersigned  Oct.  24, 1887. 
The  commissioner  of  the  general  land  office  refused 
to  accept  the  map  or  withdraw  lands  thereunder  for  the 
reason  that  a  survey  had  not  been  made  and  the  route 
definately  ascertained.  Said  map  was  clearly  within 
the  rule  designated  by  the  supreme  court  of  the  United 
States  in  the  case  of  Buttz  vs.  N.  P.  R.  R.  Co.,  in  which 
it  was  said: 

"  The  general  route  may  be  considered  as  fixed  when 
its  general  course  and  direction  are  determined  after 
an  actual  examination  of  the  country  or  from  a  knowl- 
edge of  it,  and  is  designated  by  a  line  on  a  map  show- 
ing the  general  features  of  the  adjacent  country  and 
the  places  through  or  by  which  it  will  pass." 

119  U.  S.  Rep.  55. 

The  company  was  not  able  to  furnish  a  map  corning 
within  the  erroneous  and  technical  ruling  of  the  de- 
partment until  1870.  From  1865  fo  1870  hundreds  of 
homestead  and  pre-emption  claims  had  been  initiated, 
and  many  perfected,  upon  the  odd  numbered  sections 
within  the  limits  of  the  Northern  Pacific  grant;  with- 
drawals had  been  made  of  land  for  other  railroads ;  and 
other  disposition  had  been  made  of  government  lands 
within  said  limits,  involving  hundreds  of  thousands  of 


47 

acres,  all  of  which  said  lands,  by  said  erroneous  ruling, 
are  forever  lost  to  the  company.  In  1871  the  company 
applied  to  the  interior  department  for  the  withdrawal 
of  the  lands  in  the  second  indemnity  limit.  It  was  re- 
fused, with  the  exception  of  the  state  of  Minnesota,  in 
1883  the  company  made  a  second  application  for  the 
withdrawal  of  lands  within  the  said  second  indemnity 
limit.  In  answer  to  said  application  the  secretary  of  the 
interior  said: 

UI  am  further  of  the  opinion  that,  upon  filing  maps 
of  approved  definite  location,  withdrawal  of  lands  within 
the  indemnity  limits  should  be  made  by  you  to  the 
extent  of  the  first  indemnity  limits.  Such  action  will 
be  in  accordant  v  \\ith  the  practice  heretofore  pursued 
by  your  office  in  reference  to  withdrawals  under  the 
grant  in  question.  I  must  decline  to  comply  with  the 
request  of  the  company  to  cause  withdrawal  of  the 
lands  within  the  second  indemnity  limits  in  the  terri- 
tories. As  I  am  at  present  advised, 
I  do  not  think  it  probable  that  the  company  will  ever 
be  obliged  to  resort  to  those  limits  for  selection  of  lieu 
lands." 

In  said  opinion  and  directions  to  the  Northern 
Pacific,  under  which  to  make  selections,  the  honorable 
secretary  further  said : 

"  Respecting  the  indemnity  belt,  it  is  to  be  observed 
that  the  object  of  the  law  is  to  give  within  its  entire 
limit  just  what  has  been  lost  in  place.  *  * 

It  was  clearly  the  intention  of  the  legislature  that, 
within  the  indemnity  limits  fixed  by  the  Northern 
Pacific  acts,  the  company  should  have  the  opportunity 
to  take  lands,  acre  for  acre,  for  all  those  lost  in  place." 

2  Volume  Decisions  Interior  Dept.,  p.  511. 

Under  said  directions  to  the  company  prescribed  by 
the  secretary  of  the  interior  under  the  third  section  of 
the  act  of  July  2,  1864,  two  propositions  were  settled. 


48 

First,  that  the  company  was  authorized  in  making  its 
selections,  to  select  from  only  the  first  indemnity  limit 
in  the  territories;  and  second,  it  was  by  the  depart- 
ment decided  that  the  company,  in  said  indemnity  and 
primary  limits,  wa-s  entitled  to  the  entire  amount  in- 
tended to  be  granted,  and  was  authorized  to  select  in  the 
indemnity  limit  acre  for  acre  for  the  lands  lost  in  the 
place  limits.  On  May  23,  1884,  the  secretary  of  the 
interior  further  said: 

"In  my  letter  of  May  17th  last,  I  declined  to  with- 
draw from  settlement  any  portion  of  the  odd  sections 
of  land  lying  in  the  second  indemnity  limits  within  the 
territories,  upon  the  ground  that  there  did  not  seem 
to  be  any  present  necessity  for  such  action  in  order  to 
protect  the  company  in  its  rights  to  lieu  lands." 

2  L.  D.  508. 

July  11,  1883,  the  secretary  of  the  interior  to  Com- 
missioner McFarland,  among  other  things,  said: 

"Under  the  authority  conferred  and  in  discharge  of 
the  duty  imposed  upon  me  by  the  act,  which  provides 
that  the  selections  should  be  made  under  the  direction 
of  the  secretary  of  the  interior,  I  deem  it  best  to  indi- 
cate at  the  outset  what,  in  my  opinion,  the  practice 
should  be  in  relation  to  selections.  The  amount  of 
lands  lost  within  each  of  the  spates  named  should  be 
made  up  by  selections  within  such  state,  without  regard 
to  quality,  if  there  be  sufficient  within  the  indemnity 
limits  for  that  purpose.  I  do  not  think  it  was  the  in- 
tention of  the  granting  act,  nor  do  I  deem  it  just  or 
equitable  to  the  government,  or  to  the  settlers,  to  per- 
mit the  company  to  cull  the  lands  within  such  limits, 
leaving  portions  unselected  because  they  are  poor,  and 
then  selecting  other  lands  further  along  the  line,  in 
place  of  lands  lost  within  the  granted  limits  of  those 
states.  *  *  *  And  for  lands  lost  *  *  * 
not  made  up  by  selections  in  that  way,  the  company 
should  be  allowed  to  make  selections  elsewhere  within 
the  indemnity  limits  upon  the  line  of  said  road." 

From  the  above  quotation,  it  is  apparent  that  the  in- 


49 

terior  department  then  construed  the  act  as  authoriz- 
ing the  company  to  select  in  a  state  or  territory  other 
than  that  in  which  the  loss  occurred.  At  that  time  it 
was  known  to  the  interior  department  that  in  the  states 
of  Wisconsin  and  Minnesota,  there  would  be,  after  ex- 
hausting the  indemnity  limits,  a  deficiency  to  he  made 
up  by  selections  in  the  territories.  On  May  28,  1883, 
tin-  secretary  prescribed  specific  directions  under  which 
selections  were  to  he  made  under  the  grant  to  the 
Northern  Pacific  Railroad  Company.  In  said  direc- 
tions, the  honorable  secretary,  to  the  commissioner, 
among  other  things,  said  : 

•'  In  order  to  facilitate  the  work  of  making  selec- 
tions, I  think  you  should  instruct  the  local  officers  that 
when  clear  lists  of  selections,  free  from  conflict  or  other 
objections,  are  filed  with  the  district  officers  and  ap- 
proved by  them,  said  selections  should  at  once  be 
marked  upon  their  books  and  forwarded  for  final  ex- 
amination, leaving  the  ascertainment  of  the  lands  lost 
in  place  to  your  office  instead  of  requiring  preliminary 
lists  of  such  lost  lands,  together  with  the  indemnity  lands, 
tract  for  tract,  from  the  company,  as  heretofore.  I  am 
satisfied  that  the  work  of  adjusting  the  grant  will  go 
forward  much  more  rapidly  under  this  plan  than  under 
the  former  practice." 

Prior  to  the  issuing  of  said  directions,  under  said 
former  practice. the  Northern  Pacific  Railroad  Company, 
at  great  expense,  filed  most  of  its  selection  lists  and  in 
said  selection  lists  designated  the  losses.  In  the  selection 
lists  filed  in  Dakota,  losses  of  lands  in  Minnesota  were 
specifically  described,  acre  for  acre.  Said  selections  were, 
under  the  directions  of  the  interior  department,  approved 
by  the  registers  and  receivers  of  the  local  land  offices. 
Copies  of  the  certificates  of  approval  are  set  forth  in 
the  argument  made  by  the  undersigned,  Oct.  24,  1887, 

7 


50 

on  pages  8  and  9  thereof.  Upon  the  receipt  of  the 
above  directions  of  the  interior  department,  the  com- 
pany withdrew  the  lists  of  selections  it  had  previously 
filed,  eliminated  therefrom  the  designation  of  losses, 
and  refiled  its  lists  containing  the  same  selections.  On 
the  following  day,  after  the  promulgation  of  the  direc- 
tions above  referred  to,  the  commissioner  of  the  gen- 
eral land  office  sent  to  the  twelve  district  land  officers 
along  the  line  of  the  Northern  Pacific  railroad,  specific 
directions  as  to  the  selection  of  indemnity  lands.  Said 
direction  to  each  office  was  the  same,  except  in  the 
address.  The  one  to  the  Fargo  office  reads  as  folloxv*: 

DEPARTMENT  OF  THE  INTERIOR, 
GENERAL  LAND  OFFICE. 

WASHINGTON,  D.  C.,  May  29,  1883. 
Register  and  Receiver,  Fargo,  Dakota  Ter.  : 

When  lists  of  indemnity  selections,  free  from  conflict 
or  other  objections,  are  presented  by  the  Northern  Pa- 
cific Railroad  Company,  admit  and  note  them  on  your 
records,  and  forward  them,  without  requiring  the  designa- 
tion of  lands  lost.  S.  HARRISON, 

Acting  Commissioner. 

Under  section  3  of  the  act  of  July  2,  1864,  the  in- 
terior department  is  to  prescribe  the  directions  for  se- 
lections of  indemnity  lands,  and  the  company  is  to 
make  the  selections.  Making  the  selections  is  not  a 
joint  act  of  the  government  and  the  company,  but  the 
act  of  the  company.  Justice  Htvyt  in  the  case  of 
United  State  vs.  N.  P.  R.  R.  Oo  Dec.  29,  1886,  said: 

"Was  it  the  intention  of  the  granting  act  that  these 
indemnity  selections  should  be  made  by  the  joint  act 
of  the  secretary  of  the  interior  and  the  company  ?  I 
think  not,  for  to  my  mind  such  is  not  the  reasonable 
and  fair  interpretation  of  the  language  used,  to-wit. : 
4  Other  lands  shall  be  selected  by  said  company  in  lieu 


51 

thereof,  under  the  direction  of  the  secretary  of  the  in- 
terior,' which  seems  to  me  to  clearly*  indicate  that  the 
company  were  to  make  the  selections,  and  that  all  the 
secretary  of  the  interior  was  to  do  in  the  premises  was 
to  provide  rules  and  regulations  under  which  such  se- 
lections were  to  he  made,  and  the  evidence  thereof 
made  of  record  and  preserved." 

The  foregoing  are  the  directions  prescribed  by  the 
secretary  of  the  interior  under  said  section  3,  and  are 
the  directions  under  which  most  of  the  selections  by 
the  company  were  made,  filed  and  approved.  In  said 
directions  the  registers  and  receivers  are  directed  to 
admit  and  approve  said  selections.  Under  said  direc- 
tions it  was,  and  is,  the  duty  of  the  commissioner  of 
the  general  land  office  to  designate  the  losses  in  the 
mode  prescribed  by  the  secretary  of  the  interior;  and 
to  require  the  company  to  exhaust  the  indemnity  limits 
in  the  state  or  territory  in  which  the  loss  occurred  be- 
fore going  into  any  other  jurisdiction.  It  goes  without 
saying  that  after  the  directions  for  making  the  selec- 
tions have  been  prescribed  by  the  secretary  of  the  in- 
terior, and  the  company,  in  pursuance  of  said  direc- 
tions, has  made  its  selections,  that  the  rights  of  the 
company  attached.  Xeither  the  interior  department 
nor  any  other  department  can  add  to  or  diminish  such 
rights.  The  interior  department,  by  other  and  differ- 
ent directions,  issued  after  such  selections  have  been 
made,  can  not  increase  the  duties,  obligations  and  bur- 
dens of  the  company. 

"A  contract  by  which  the  rights  of  one  party,  after 
performance  on  his  part,  would  be  at  the  absolute 
pleasure  of  the  other,  would  be  an  anomaly." 

St.  P.  £  C.  Ry.  Co.  vs.  Brown,  24  Minn.  Rep.  580. 

At  the  time  of  prescribing  the  directions  aforesaid, 

it  was  well  known  to  the  interior  department  that  the. 


52 

Northern  Pacific  Railroad  Company  could  not,  within 
man}T  of  the  sections  of  the  road  in  Washington  ter- 
ritory, or  within  any  of  the  sections  of  the  road  in 
Wisconsin  and  Minnesota,  obtain  from  the  indemnity 
limits  the  lands  lost  in  place.  The  refusal  to  allow  the 
company  to  go  into  the  second  indemnity  belt  in  the 
territories;  the  assertion  that  it  could  make  up  at 
other  places  along  the  line  of  the  road  what  it  had  lost 
in  the  sections  where  there  were  not  sufficient  lands  in 
the  indemnity  limits,  and  the  statement  that  the  com- 
pany should  be  confined  to  the  political  jurisdiction  in 
which  the  loss  occurred,  provided  there  were  sufficient 
vacant  lands  therein  to  make  up  the  loss,  clearly  indi- 
cate that  the  company  was  authorized  by  the  depart- 
ment to  do  precisely  what  it  did  —  make  selections  in 
one  political  jurisdiction  for  losses  in  another.  After 
the  greater  part  of  the  selections  had  been  made  and 
approved  as  aforesaid,  Commissioner  Sparks  directed 
that  the  company  make  its  selections,  and  in  its  selec- 
tion lists  designate  its  losses.  Such  directions  were 
applicable  in  so  far  as  the  selections  had  not  been 
made,  but  could  not  affect  the  selections  already  made 
in  pursuance  of  directions  previously  prescribed.  The 
company's  vested  property  rights  can  not  be  thrown 
from  one  side  to  another,  like  a  shutllecock,  to  suit 
the  whim,  caprice,  or  legal  acquirements  of  the  various 
officials  in  the  interior  department.  Many  lands  in 
the  indemnity  limits  subject  to  selection  at  the  time 
the  applications  were  made  to  withdraw  said  lands  for 
the  benefit  of  the  company,  have  since  been  appropri- 
ated by  bona  fide  pre-emption,  homestead  and  other 
claimants.  If  the  government  had  approved  the  map 


58 

of  the  company  in  1865,  and  withdrawn  the  lands  in 
the  second  indemnity  helt  in  1871  and  1883,  as  re- 
quested, the  necessity  would  not  have  been  so  great 
for  the  company  to  go  into  the  states  and  territories 
for  indemnity  lands  other  than  that  in  which  the  loss 
occurred.  It  is  the  duty  of  the  interior  department  to 
so  administer  the  grant  as  to  enable  the  company  to 
obtain  its  full  complement  of  land.  The  supreme 
court  of  Minnesota,  in  a  ease  involving  the  right  of 
selections,  said : 

"The  commissioner  of  the  land  office  was,  there- 
fore, not  authorized  to  set  apart  to  the  institutions 
named  any  swamp  lands  ^xvcpt  out  of  the  surplus  that 
should  remain  after  prior  grants  and  appropriations 
should  be  filled.  And  this  was  in  strict  accordance 
whh  honesty  and  good  faith,  for  H  contract  by  the 
state  to  convey  to  this  plaintiff  a  designated  number 
of  swamp  lands,  and  giving  it  the  right  to  select,  in 
order  to  make  up  deficiencies,  from  swamp  lands  out- 
side of  the  designated  limits,  involves  the  obligation 
on  the  part  of  the  state  to  retain  for  such  selections,  if 
it  receive  them,  enough  of  such  lands  to  give  effect  to 
the  right  of  selection." 

St.  Paulf  Chicago  Jt.   £.  Co.  vs.  Bnncn,  24  Minn. 
Rep.  579. 

The  failure  of  the  government  to  make  the  with- 
drawals and  protect  the  indemnity  limits  for  the  com- 
pany is  a  reason  why  the  company  should  be  permitted 
to  go  into  a  section  or  jurisdiction  other  than  that  in 
which  the  loss  occurred,  to  make  selections.  In  the 
Burlington  &  Missouri  River  grant,  the  supreme  court 
said  : 

u  In  some  instances  good  reasons  may  exist  why  a 
selection  elsewhere  ought  to  be  permitted.  If,  as  in 
the  present  case,  by  its  neglect  for  years  to  withdraw 
from  sale  land  beyond  twenty  miles  from  the  road,  the 


54 

land  opposite  to  any  section  of  the  road  has  been  taken 
np  by  others  and  patented  to  them,  there  can  be  no 
just  objection  to  allowing  the  grant  to  the  company  to 
be  satisfied  by  land  situated  elsewhere  along  the  gen- 
eral line  of  the  road." 

U.  S.  vs.  B.  £  M.  R.  R.  Co.,  98  U.  S.  Rep.  340. 

Such  a  construction  is  warranted,  not  only  by  the 
language  of  the  charter  of  the  Northern  Pacific,  but 
by  the  construction  placed  thereon  by  ttye  interior  de- 
partment, whose  duty  it  was  to  construe  the  law,  in 
1883.  If  the  interpretation  now  suggested  had  then 
obtained,  and  the  lands  been  withdrawn  in  the 
second  indemnity  belt  in  the  territories,  and  if  the 
lands  had  been  withdrawn  in  1865,  at  the  time  of  the 
filing  the  first  map,  when  they  ought  to  have  been,  per- 
haps there  would  have  been  no  necessity  for  selecting 
in  a  jurisdiction  other  than  that  in  which  the  loss  oc- 
curred. By  following  the  directions  prescribed  in  1883, 
thousands  of  acres  of  valuable  lands  have  been  lost  to 
the  company  in  the  second  indemnity  belt  in  the  terri- 
tories. 

Tf  the  departmental  construction  is  now  to  be 
changed,  and  the  company  limited  to  the  coterminus 
principle  in  selections,  the  records  of  the  interior  de- 
partment show  that  the  company  will  sustain  irrepara- 
ble damage.  It  will  not  be  able  to  make  up  the  defi- 
cit by  several  hundred  thousands  of  acres.  The 
selections  made  under  the  instructions  in  this  argu- 
ment, heretofore  referred  to,  have  all  been  approved 
by  the  registers  and  receivers,  as  directed  by  the  sec- 
retary of  the  interior  and  the  commissioner  of  the 
general  land  office.  The  approvals  are  all  alike,  and 
on  file  in  the  interior  department.  We  will  refer  to 
but  one  of  them,  to-wit: 


55 

UNITED  STATES  LAND  OFFICE, 

FARGO,  D.  T.,  Oct.  8,  1883. 

We  hereby  certify  that  we  have  carefully  and  crit- 
ically examined  the  foregoing  list  of  lands  claimed  by 
the  Northern  Pacific  Railroad  Company,  under  the 
grant  to  the  said  company,  by  act  of  Congress  ap- 
proved July  2,  1864,  and  joint  resolution  approved 
May  31,  1870,  and  selected  by  said  Northern  Pa- 
cific Railroad  Company  by  Chas.  B.  Lamborn,  the 
duly  authorized  agent,  and  we  have  tested  the  accuracy 
of  said  list  by  the  plats  and  records  of  this  office,  and 
that  we  find  the  same  to  be  correct;  and  we  further 
certify  that  the  filing  of  said  list  is  allowed  and  ap- 
proved, and  that  the  whole  of  said  lands  are  surveyed 
public  lands  of  the  United  State's,  and  within  the  limit 
of  fifty  miles  on  each  side;  and  that  the  same  are  not, 
nor  is  any  part  thereof,  returned  and  denominated  as 
mineral  land  or  lands,  nor  claimed  as  swamp  lands: 
nor  is  there  any  homestead,  pre-emption,  state,  or  any 
other  valid  claim  to  any  portion  of  said  lands  on  file  or 
record  in  this  office. 

We  further  certify  that  the  foregoing  list  shows  an 
assessment  of  the  fees  payable  to  us,  allowed  by  the 
act  of  Congress  approved  July  1,  1864,  and  contem- 
plated by  the  circular  of  instructions  dated  Jan.  24, 
1867,  addressed  by  the  commissioner  of  the  general 
land  office  to  registers  and  receivers  of  the  United 
States  land  offices;  and  that  the  said  company  have 
paid  to  the  undersigned  receiver  the  full  sum  of  thir- 
teen and  sixty-eight  hundredths  dollars,  in  full  pay- 
ment and  discharge  of  said  fc 

HORACE  AUSTIN,  Register. 

E.  C.  GEARY,  Receiver. 

After  making  said  selections  under  said  directions, 
and  the  approval^  thereof  as  aforesaid,  the  company 
commenced  the  sale  of  its  indemnity  lands  so  selected 
and  approved.  In  Dakota  alone,  it  has  sold  over  200,- 
000  acres  thereof.  Twenty  villages  are  located  thereon. 
Thousands  of  people  have  their  homes  upon  said  prop- 
erty. They  have  invested  in  permanent  and  valuable 
improvements  upon  said  lands  millions  of  dollars.  They 


56 

made  their  purchases,  erected  their  homes,  invested 
their  money  and  labor  in  improvements  in  good  faith, 
relying  upon  the  constmction  and  directions  of  the 
secretary  of  the  interior  above  mentioned.  It  is  now 
too  late  to  change.  All  the  elements  of  estoppel  against 
the  government  are  embodied  in  the  foregoing  facts. 
Affirmative,  positive  action  relied  upon  by  the  com- 
pany and  the  people  continued  for  so  many  years,  un- 
der which  property  rights  have  grown  up,  presents  a 
case  coming  within  the  authorities  heretofore  cited. 

3.  Res  Judicata. 

It  is  not  necessary  to  repeat  the  decisions  of  the  secre- 
tary of  the  interior  set  forth  under  the  head  of  estop- 
pel. It  is  apparent  therefrom  that  the  interior  depart- 
ment, when  called  upon  to  act  in  the  matter,  did  de- 
cide that  the  railroad  company  could  select  lands  in  a 
state  or  territory  other  than  that  in  which  the  loss  oc- 
curred, and  that  under  said  decisions  and  directions, 
the  greater  part  of  the  selections  pending  for  patent  in 
the  interior  department  were  made.  No  new  facts  are 
suggested;  a  review  is  not  asked  by  an}-  person.  In 
such  a  case,  the  authorities  all  agree  that  it  is  the  duty 
of  the  secretary  of  the  interior  not  to  review  the  de- 
cisions of  his  predecessors,  when  acted  upon  by  the 
parties  interested,  but  to  execute  and  carry  them  into 
effect,  and  if  wrong,  leave  it  to  the  courts  to  settle. 

See  authorities  cited  in  the  argument  of  the  under- 
signed, made  Oct.  24,  1887,  on  pages  11,  12,13,  14,  15, 
16,  20,  21,  22,  23,  31,  32,  and  42. 

ST.  PAUL,  Dec.  24,  1887. 


JAMES 
Counsel  N.  P.  It.  R.  Co. 


